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Storman v. U.S. Dep't of Health and Human Services


February 4, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Presently pending before this court are: (1) the motion to dismiss filed by defendant California Department of Health Care Services ("CDHCS") on April 11, 2008; (2) the motion for summary judgment filed by plaintiff on April 15, 2008; and (3) the cross-motions for summary judgment filed by defendants CDHCS and the U.S. Department of Health and Human Services' ("DHHS") on June 16, 2008.*fn2 By order filed April 29, 2008, this court deemed all matters submitted for decision on the papers.*fn3,*fn4

For the reasons that follow, the court recommends that defendant CDHCS' motion to dismiss be granted, the cross-motions by both defendants be granted, and plaintiff's motion for summary judgment be denied.


A. Plaintiff's Allegations

Plaintiff challenges the denial of his prescription drug coverage for Viagra under both Medicare, the federally-funded medical benefits program for individuals age 65 and older, and Medicaid ("MediCal" in California), funded both federally and by the state to provide medical benefits to the indigent. Plaintiff is a "dual eligible beneficiary" who meets the eligibility requirements for both Medicare and Medi-Cal.

Plaintiff's complaint, filed October 9, 2007, is set forth in its entirety (not including exhibits):

This is an appeal for court review from a series of appeals on the Federal level and a legal claim against the California Department of Health Services (see enclosed exhibits). The plaintiff is a disabled person suffering from multiple disabilities and medical conditions. The defendants are the U.S. Department of Health and Human Services who administer the Medicare Part D program and the California Department of Health Services who administer the Medi-Cal program (i.e., Medi-Cal Director).

On January 1, 2007, Congress and the U.S. President signed into law an exclusion from Part D Medicare prescription drugs that barred Medicare patients from purchasing Viagra (under the Medicare Part D plan). About the same time, Medi-Cal barred Medi-Cal patients from obtaining Viagra by means of a TAR or Treatment Authorization Request (at no cost). Plaintiff, who has dual Medicare Part D and Medi-Cal coverage, was barred from obtaining Viagra -- unless he pays $88.00 for a bottle of six Viagra, which he can not do on an income of $876 per month (SSDI & SSI).

Plaintiff, herein, makes the following legal claims about the above matter(s). That Medicare Part D's barring of Viagra as a prescription drug is discriminatory against the male gender under the U.S. Sex Discrimination Act and that it is also unconstitutional because it prevents men from living a life guaranteed by life, liberty and the pursuit of happiness under the U.S. Constitution. When making his appeals, plaintiff appeals about the above claims could not be ruled on by the various administrative agencies because of lack of jurisdiction. [Sic]. Therefore, plaintiff beseeches the court to rule on these legal claims, and reminds the court that the government would not do to women in denying birth control pills what they have backgrounded to plaintiff as a disabled man in denying him Viagra.

Finally, plaintiff also contends that the California Medi-Cal Director has violated Title II of the Americans with Disabilities Act by denying a TAR request for plaintiff as a disabled man out of medical necessity. Plaintiff's request for Viagra is out of medical necessity because plaintiff lacks stamina and energy due to numerous conditions including major depression, Tourette syndrome, hemochromatosis, Barrett's disease, and anxiety disorder and acid-reflux.

Plaintiff seeks the following in restitution for being denied Viagra under his Kaiser Senior Advantage Medicare Part D & Medi-Cal plans:

1) That plaintiff be allowed to[] purchase Viagra under Medicare Part D for a bottle of six pills at $3.10 per bottle.

2) That Medi-Cal grant plaintiff's TAR requests for Viagra for a bottle of 6 pills at no charge.

3) That defendants pay plaintiff $5,000 each for punitive and compensatory damages as a result of the pain and suffering they have caused plaintiff in denying him Viagra.

Plaintiff challenges that portion of the Medicare Prescription Drug, Modernization and Improvement Act of 2003 ("MMA"), 42 U.S.C. § 1395w-101, et seq., that excludes federal and state coverage for drugs or agents used for the treatment of sexual dysfunction. The State of California, through its Medi-Cal program, has implemented the MMA through enactment of Welfare and Institutions Code § 14133.23.

B. Administrative Proceedings*fn5

As a dual eligible enrollee, plaintiff originally received prescriptions for Viagra; however, once the change in law excluding this drug became effective on January 1, 2007, plaintiff's insurance, Kaiser Permanente Senior Advantage Medicare Part D Plan, ceased coverage after a one month transitional supply was provided. (AR 153-56.) Plaintiff requested review of the noncoverage which was affirmed by Kaiser on February 18, 2007. (AR 125-28.) On March 6, 2007, plaintiff appealed the denial of coverage to an independent review entity that contracts with Centers for Medicare and Medicaid Services. (AR 105-06.) The noncoverage decision was upheld on March 15, 2007. (AR 62-65.) Plaintiff requested a hearing before an ALJ and a telephonic hearing was held on May 18, 2007. (AR 145-62.) The ALJ issued an unfavorable decision on May 23, 2007, finding that Kaiser was not required to cover plaintiff's Viagra prescription. (AR 12-18.) Plaintiff then requested review of this decision by the Medicare Appeals Council which issued a decision adopting the ALJ's decision as the final decision of the Secretary of HHS. (AR 3-6.) Plaintiff filed the instant action on October 9, 2007.


A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)

"When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corporation v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001) (citations and internal quotations omitted).

Ordinarily, when "matters outside the pleadings are presented to . . . the court, the motion shall be treated as one for summary judgment." Fed. R. Civ. P. 12(c). However, when there is a factual question about whether a court has jurisdiction, the trial court may consider affidavits or any other evidence properly before the court. Sommatino v. United States, 255 F.3d 704, 710 (9th Cir. 2001); Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). Thus, unlike the strict limitations under Rule 12(b)(6) against considering matters outside the complaint, a Rule 12(b)(1) motion may refer to evidence extraneous to the complaint without converting it into a Rule 56 motion for summary judgment. Sun Valley Gas v. Ernst Enters., Inc., 711 F.2d 138,139 (9th Cir. 1983).

B. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "'The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992).

Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

C. Summary Judgment Pursuant to Fed. R. Civ. P. 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district 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," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, 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. See id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).*fn6


Defendant CDHCS seeks dismissal from this action based on lack of subject matter jurisdiction pursuant to the Eleventh Amendment, (Fed. R. Civ. P. 12(b)(1)), failure to state a claim (Fed. R. Civ. P. 12(b)(6)), insufficient service of process (Fed. R. Civ. P. 12(b)(5)), and failure to comply with the Government Claims Act.*fn7

Defendant DHHS has filed an opposition and cross-motion for summary judgment based on federal law which excludes Viagra from medical coverage, sovereign immunity, and failure to state a claim (Fed. R. Civ. P. 12(b)(6)).

Plaintiff's motion for summary judgment is two pages long and is limited to repeating some of the allegations in his complaint. It contains no statement of undisputed facts or evidence, and is in violation of E.D. Local Rule 56-260. Furthermore, the motion raises for the first time the issue of defendants paying for "10 medications on a nominal fixed income." Pl.'s MSJ at 2. To the extent that plaintiff raises new claims that were not alleged in his complaint, they will not be addressed.*fn8

The issues raised in the parties' separate motions will be combined where appropriate.

A. Immunity (Damages Claims)

It is well established now that invocation of the Eleventh Amendment does not affect the subject matter jurisdiction of the court. "The Eleventh Amendment ... does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so." Wisc. Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 204(1998). However, whether a Rule 12(b)(1) or 12(b)(6) standard controls is of no import -- the matters presented are purely questions of law.

CDHCS initially challenges, on Eleventh Amendment grounds, plaintiff's demand for relief that "Medi-Cal grant plaintiff's TAR requests for Viagra for a bottle of 6 pills at no charge." This defendant contends that this is a request for monetary relief, or damages, from the state, and is therefore precluded by the Eleventh Amendment's prohibition against the state funding of adverse judgments.

DHHS similarly asserts its failure to waive sovereign immunity to be sued for damages.

Plaintiff's damages claims are noncognizable against either the federal or state government. Sovereign immunity protects the federal government from monetary damages awards. Lane v. Pena, 518 U.S. 187, 200, 116 S.Ct. 2092, 2100 ( 1996). Absent a statutory waiver of sovereign immunity, the United States cannot be sued and claims against it must be dismissed. Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351 (1980), United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503 (1969). Similarly, "[t]he Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state." Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900 (1984)).*fn9 The Eleventh Amendment bars suits against a state for damages unless the state has consented to or waived immunity, or Congress has validly abrogated the same. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-55, 116 S.Ct. 1114 (1996).

Accordingly, plaintiff may not pursue his claims for restitution or compensatory and punitive damages against either defendant.

The CDHCS contends that plaintiff's entire claim in effect seeks damages because plaintiff wants Medi-Cal to pay for his Viagra prescriptions. CDHCS cites Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139 (1979), for this proposition. There, the court found that a district court order requiring state officials to give notice to class members constituted prospective relief under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), as it would require a federal court to enjoin future conduct "even though such an injunction may have an ancillary effect on the state treasury." Id. at 337.

To determine whether the Ex parte Young doctrine avoids the Eleventh Amendment bar to suit against a state, the court should examine whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); see also, ACS of Fairbanks, Inc. v. GCI Commun. Corp., 321 F.3d 1215, 1216 (9th Cir.2003). This inquiry into whether suit can be maintained does not include an analysis of the merits of the claim. Couer d'Alene, 521 U.S. at 281. An allegation of an ongoing violation of federal law is ordinarily sufficient. Id. Here, plaintiff's allegation is sufficient, despite the fact that here the state and federal governments are complying with lawful federal legislation.*fn10

Focusing on the purpose of the relief sought, it is helpful to consider that relief which serves to compensate a party injured in the past by illegal state action is barred; however, relief which seeks to end an ongoing violation of federal or Constitutional law is not barred despite the fact that it may have a "substantial ancillary effect on the state treasury." Cardenas v. Anzai, 311 F.3d 929, 936 (9th Cir. 2002), quoting Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932 (1986). Furthermore, the court may consider a defendant's past conduct as it pertains to ongoing or future violations without running afoul of the Eleventh Amendment. Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309-10 (9th Cir. 1993). For example, a breach of trust claim is barred by the Eleventh Amendment because it seeks to correct a past wrong, whereas an equal protection claim has been found to overcome an Eleventh Amendment challenge because "although the current disparity in benefits might have resulted directly from the state's past illegal actions relative to the trust, 'the essence of the equal protection allegation is the present disparity in distribution of the benefits of state-held assets and not the past actions of the State.'" Cardenas, 311 F.3d at 936, quoting Papasan, 478 U.S. 282, 106 S.Ct. at 2932. The prospective relief in that case as well as the instant case is plaintiff's attempt to end the disparity via an equal protection claim, and is not barred by the Eleventh Amendment. The same result obtains in regard to plaintiff's claim under the ADA.

Remaining is plaintiff's claim for injunctive relief against both the state and federal governments that would in effect annul implementation of the Medicare Part D prescription drug program. Plaintiff asserts this remedy is warranted under the U.S. Constitution and the Americans with Disabilities Act.

B. Viagra is Excluded From Medicare Part D Coverage

As set forth in this court's previous findings and recommendations in Civ.S. 06- 2892 GEB GGH PS, the legal framework underlying the change in plaintiff's prescription drug coverage from MediCal (with no copayments) to Medicare, was clearly set forth by Judge Morrison C. England, in Medicare and Medicaid Independent Living Center of Southern California, Inc. v. Leavitt, Civ. S-06-0435 MCE KJM, 2006 WL 1409621 (E.D. Cal. 2006), wherein Judge England denied plaintiffs' motion to enjoin the MMA to the extent it changed prescription drug coverage for individuals (like plaintiff herein) dually eligible under both Medicare and Medicaid. As described by Judge England (id., at *1-2):

Title XVIII of the Social Security Act, commonly known as the Medicare Act, establishes a program of federally subsidized health insurance for the elderly and disabled. 42 U.S.C. §§ 1395, et seq. . . . Through enactment of the MMA, Congress provided Medicare coverage for drugs under what is now referred to as Part D of the Medicare program. . . . Part D became effective on January 1, 2006. Another portion of the Social Security Act, Title XIX, establishes a separate federal-state program providing medical assistance for categorically low-income persons. 42 U.S.C. §§ 1396, et seq. This coverage, known as Medicaid, or MediCal in California, is administered by the states and funded in part through federal aid so long as each state's program complies with applicable Medicaid laws and regulations. See Alexander v. Choate, 469 U.S. 287, 289, n. 1, 105 S.Ct. 712 [] (1985).

About 6 million dual eligibles qualify for both Medicare and Medicaid benefits. For those individuals, Medicare generally pays first and Medicaid provides protection for services not covered under Medicare. Prior to enactment of the MMA, Medicaid paid for dual eligibles' prescription drugs. . . . [¶ ] Exclusive provision of prescription drugs through Medicaid has changed with the advent of the MMA. Under Part D, Medicare becomes the primary payer for dual eligibles as to all drugs covered under Medicare. The Medicaid Act was consequently amended to provide that Medicaid is not available for such drugs. 42 U.S.C. § 1396u-5(d)(1). The State of California similarly enacted Welfare and Institutions Code § 14133.23, which eliminated the provision of drug benefits under MediCal to dual-eligible beneficiaries that would otherwise now be covered under Medicare, Part D. . . . .under Part D, even dual eligibles with incomes not exceeding the poverty level must make a modest co-payment for needed drugs, ranging from $1 for generic medicines to $3 for name brands.*fn11

Because certain drugs that had been covered under MediCal are not included under Medicare Part D, states may continue to provide Medicaid coverage for such drugs, and California has so elected.

Most recently, and subsequent to the previous Storman case, another statute was enacted which excludes from coverage prescriptions for drugs used to treat sexual or erectile dysfunction, unless the drug was prescribed to treat another condition, such treatment having been approved by the Food and Drug Administration. 42 U.S.C. § 1395w-102(e)(2)(A).

The complaint alleges that plaintiff needs Viagra because he lacks "stamina and energy due to numerous conditions including major depression, Tourette Syndrome, hemochromatosis, Barrett's disease, an anxiety disorder and acid reflux." Compl. at 3. The exhibits to the complaint and the administrative record indicate that Viagra was prescribed to plaintiff for treatment of sexual dysfunction. Plaintiff testified that he took it for this purpose. Compl., Ex. at 8; AR at 154, 160-61. The Food and Drug Administration has approved the use of Viagra for no treatment other than sexual dysfunction. AR at 44-48. On May 23, 2007, an ALJ affirmed the denial of coverage of this drug. AR at 15-18. The statute is clear and the Secretary's decision was correct. Therefore, the DHHS is entitled to summary judgment on plaintiff's claim that he is entitled to coverage for this drug.

C. Failure to State a Claim (12(b)(6))

1. Equal Protection

Plaintiff asserts that the exclusion of Viagra from Medicare's Part D constitutes gender discrimination. He also claims that it "prevents men from living a life guaranteed by life liberty and the pursuit of happiness under the U.S. Constitution." Compl. at 2.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41,105 S.Ct. 3249, 3254-55 (1985), quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).

Plaintiff has not provided support for his basic premise, that the legislation at issue is gender based. The exclusion in the MMA to which plaintiff objects specifies only that drugs used to treat sexual or erectile dysfunction are excluded. 42 U.S.C. § 1395w-102(e)(2)(A). Sexual dysfunction includes erectile dysfunction as a subset and the term, "sexual" is not gender specific. If there were prescription drugs which could be prescribed to women for sexual dysfunction, they would also be excluded. Therefore, the legislation can only be analyzed as potentially having an impact on individuals who cannot afford to buy these drugs. Unlike gender which calls for a heightened standard of review, legislation which causes an economic impact is analyzed under a rational basis standard. City of Cleburne, 473 U.S. at 440-41,105 S.Ct. at 3254-55.

It has long been held that the due process clauses of both the Fifth and Fourteenth Amendments are intended to prevent governmental abuse of power; however, they "generally confer no affirmative right to governmental aid." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003 (1989).

Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ...

Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. United States Railroad Retirement Bd. v. Fritz, supra, 449 U.S., at 179, 101 S.Ct., at 461.

F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313,113 S.Ct. 2096, 2101 (1993).

Here, DHHS has provided citation indicating the intent of Congress to limit public funds for drugs relating to sexual dysfunction due to their high cost and potential threat to the financial stability of Medicare. 151 Cong. Rec. H5105-05, 2005 WL 1492977 at *H5128. It should be added that at least some members of Congress did not think the government should subsidize recreational sex. Id. This stated intent goes beyond the mere speculation required for a rational basis analysis, and is therefore more than sufficient.*fn12 Evidence or empirical data is not required. Beach Communications, 508 U.S. at 315, 113 S.Ct. at 2102.

Plaintiff has the burden to "negative every conceivable basis which might support" the legislation, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006 (1974), and he has failed to do so. Therefore, his equal protection claim fails.

2. ADA

Plaintiff next claims that the "California Medical Director," in denying his request for coverage of Viagra due to medical necessity, violated his rights under Title II of the Americans With Disabilities Act ("ADA").*fn13 Compl. at 3.

The ADA broadly prohibits discrimination against individuals with disabilities.

42 U.S.C. §§ 12101 et seq. Title II of the ADA prohibits, inter alia, discrimination in the provision of services and programs by a public entity. 42 U.S.C. §§ 12131 et seq. To allege a prima facie case under Title II, plaintiff must allege (1) he is a qualified individual with a disability;*fn14 (2) he was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); see also Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1995).

Plaintiff's ADA claim against the state must fail. While there is no question that the Eleventh Amendment's grant of state sovereign immunity has been abrogated by Title II of the ADA, Phiffer v. Columbia River Correctional Institute, 384 F.3d 791, 792 (9th Cir. 2004), Title II creates a private cause of action against the States only for conduct that actually violates the Fourteenth Amendment, U.S. v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 882 (2006). Plaintiff must show he suffered intentional discrimination due to a disability, which he is unable to do.

The ADA provides in part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Although plaintiff might otherwise be a qualified individual by virtue of his other medical conditions, the exclusion for drugs such as Viagra under Medicare Part D renders him an unqualified individual for this purpose. In other words, plaintiff is not excluded from coverage for Viagra prescriptions because of any disability he might have.

Furthermore, the federal statute which excludes Viagra from Medicare Part D controls over the ADA. By enacting the MMA, Congress foreclosed a right of action under the ADA for discrimination based on a disability due to deprivation of certain prescription drugs. The expressed intent of Congress, as discussed supra, was to save money by preserving funds for future Medicare recipients, not to prevent individuals with disabilities from obtaining medication. Medi-Cal is merely complying with Federal and State law by following 42 U.S.C. § 1395w-102(e)(2)(A) and Cal. Welf. & Inst. Code § 14133.23. In other words, the more general ADA federal statute cannot trump the more specific Medicare/Medicaid statute. Accordingly, plaintiff cannot claim discrimination on the basis of a disability, and any claim based on the ADA is without merit.


For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. The motion to dismiss filed by defendant CDHCS on April 11, 2008, be granted;

2. The motion for summary judgment filed by plaintiff on April 15, 2008, be denied;

3. The cross-motion for summary judgment filed by defendant CDHCS on June 16, 2008, be granted;

4. The cross-motion filed by defendant DHHS on June 16, 2008 be granted; and 5. This action be dismissed with prejudice and judgment be entered in favor of defendants.

These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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