Opinion
C/A No. 3:18-00895-JFA
2019-08-06
The ESTATE OF Latoya Nicole VALENTINE, BY AND THROUGH Debra GRATE, Personal Representative and Debra Grate, in her individual capacity, Plaintiffs, v. The State of SOUTH CAROLINA, the Office of the Governor, Henry D. McMaster, Nimrata "Nikki" Haley, Joshua Baker, Christian Soura, the South Carolina Department of Health and Human Services, the South Carolina Department of Disabilities and Special Needs, the Pickens County Disabilities and Special Needs Board, Mary Poole, Patrick Maley, Lois Park Mole, Susan Beck, Beverly Buscemi, Stanley Butkus, Kathi Lacy, William Barfield, Thomas Waring, Robert Kerr, William Danielson, Elaine Thena, John Owens, and Diane Anderson, Defendants.
Patricia L. Harrison, Patricia Logan Harrison Law Office, Columbia, SC, William Innes Bouton, Wilkins and Bouton, Greenville, SC, for Plaintiffs. William Henry Davidson, II, Kenneth Paul Woodington, Davidson Wren and Plyler PA, Columbia, SC, for Defendants South Carolina, The State of, South Carolina Department of Disabilities and Special Needs, Patrick Maley, Beverly Buscemi, Kathi Lacy, Thomas Waring, Susan Beck. Damon C. Wlodarczyk, Riley Pope and Laney, Columbia, SC, for Defendants South Carolina Department of Health and Human Services, Joshua Baker, Christian Soura. George P. Callison, Jr., Callison Dorn Thomason and Knott, Greenwood, SC, for Defendants Pickens County Disabilities and Special Needs Board, Elaine Thena, John Owens. Kenneth Paul Woodington, Davidson Wren and Plyler PA, Columbia, SC, for Defendants Office of the Governor, the, Henry D. McMaster, Nimrata Haley, Robert Kerr, Lois Park Mole, William Barfield, William Danielson, Mary Poole, Stanley Butkus. James Victor McDade, Doyle O'Rourke Tate and McDade, Anderson, SC, for Defendant Diane Anderson.
Patricia L. Harrison, Patricia Logan Harrison Law Office, Columbia, SC, William Innes Bouton, Wilkins and Bouton, Greenville, SC, for Plaintiffs.
William Henry Davidson, II, Kenneth Paul Woodington, Davidson Wren and Plyler PA, Columbia, SC, for Defendants South Carolina, The State of, South Carolina Department of Disabilities and Special Needs, Patrick Maley, Beverly Buscemi, Kathi Lacy, Thomas Waring, Susan Beck.
Damon C. Wlodarczyk, Riley Pope and Laney, Columbia, SC, for Defendants South Carolina Department of Health and Human Services, Joshua Baker, Christian Soura.
George P. Callison, Jr., Callison Dorn Thomason and Knott, Greenwood, SC, for Defendants Pickens County Disabilities and Special Needs Board, Elaine Thena, John Owens.
Kenneth Paul Woodington, Davidson Wren and Plyler PA, Columbia, SC, for Defendants Office of the Governor, the, Henry D. McMaster, Nimrata Haley, Robert Kerr, Lois Park Mole, William Barfield, William Danielson, Mary Poole, Stanley Butkus.
James Victor McDade, Doyle O'Rourke Tate and McDade, Anderson, SC, for Defendant Diane Anderson.
ORDER
Joseph F. Anderson, Jr., United States District Judge
This matter is before the Court on seven pending Motions to Dismiss the Second Amended Complaint. (ECF Nos. 45, 46, 55, 56, 64, 65, and 73).
I. Procedural History
The forty-three page Complaint originally filed in this case on April 2, 2018, (ECF No. 1), named thirteen defendants and asserted the following five causes of action: (1) violation of the South Carolina Tort Claims Act ("the Act"); (2) violation of the Americans with Disabilities Act ("ADA"); (3) violation of Section 504 of the Rehabilitation Act ("§ 504"); (4) violation of 42 U.S.C. § 1983 (" § 1983"); and (5) quantum meruit.
On July 12, 2018, Defendants South Carolina Department of Health and Human Services, Joshua Baker, and Christian Soura filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds the Complaint failed to set forth any factual allegations giving rise to any claim upon which relief could be granted. (ECF No. 9). Thereafter, on August 2, 2018, Plaintiffs timely filed an eighty-two page Amended Complaint, (ECF No. 15), naming twenty-three defendants. The Amended Complaint alleged the following nine causes of action: (1) violation of the Act; (2) violation of the ADA and § 504; (3) violation of § 1983 ; (4) fraud, misrepresentation and fraudulent conversion; (5) violation of § 1985; (6) common law conspiracy; (7) violation of 42 U.S.C. § 1986 ; (8) RICO; and (9) quantum meruit.
On August 22, 2018, Defendants South Carolina Department of Health and Human Services, Joshua Baker, and Christian Soura filed a Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 18). That same day, Defendants State of South Carolina, South Carolina Department of Disabilities and Special Needs, Patrick Maley, Beverly Buscemi, Kathi Lacy, Thomas Waring, and Susan Beck ("the State and the SCDDSN Defendants") filed a Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 19). On November 28, 2018, this Court denied the two motions to dismiss the Amended Complaint without prejudice. (ECF No. 40). This Court ordered Counsel for Plaintiffs to file a Second Amended Complaint, which complied with Fed. R. Civ. P. 8 and which did not exceed thirty-five (35) pages in length.
Thereafter, on December 3, 2018, Counsel for Plaintiffs filed a "Notice of Withdrawal of State Law Claims" stating that Plaintiffs filed a lawsuit in Pickens County, Court of Common Pleas on November 30, 2018, and Plaintiffs did not intend to litigate the state law claims in this action. (ECF No. 41). On December 26, 2018, Plaintiffs then filed a Second Amended Complaint. (ECF No. 42).
Plaintiffs stated: "Plaintiffs hereby notify the Court that they do not intend to include the state law claims for violation of the Tort Claims Act and state law conspiracy in the second amended complaint, which will now be litigated in the state court." (ECF No. 41 ps. 1–2).
Plaintiffs then filed a civil action in Pickens County, Court of Common Pleas on November 30, 2018. That 94-page, 563 paragraph complaint still included all the above-named Defendants in this action with the addition of the Defendants Kerr & Company and Sam Waldrep. In addition to the state law claims, that complaint filed in Pickens County (ECF No. 1 in case 19-198) still contained the federal questions of law claims for the alleged violation of the ADA and § 504. This parallel case (19-198) was then removed from Pickens County to this Court on January 23, 2019. (ECF No. 1 in case 19-198). Thereafter, on March 14, 2019, this Court ordered case 19-198 be remanded to state court and Plaintiffs agreed to voluntarily dismiss the federal claims. (ECF No. 24 in case 19-198)
The Second Amended Complaint, (ECF No. 42), presently the subject to the pending seven motions to dismiss, names the following twenty-three Defendants: (1) The State of South Carolina, (2) the Office of the Governor, (3) Henry D. McMaster, (4) Nimrata "Nikki" Haley, (5) Joshua Baker, (6) Christian Soura, (7) the South Carolina Department of Health and Human Services ("SCDHHS"), (8) the South Carolina Department of Disabilities and Special Needs ("SCDDSN"), (9) the Pickens County Disabilities and Special Needs Board ("PCDSNB"), (10) Mary Poole, (11) Patrick Maley, (12) Lois Park Mole, (13) Susan Beck, (14) Beverly Buscemi, (15) Stanley Butkus; (16) Kathi Lacy, (17) William Barfield, (18) Thomas Waring, (19) Robert Kerr, (20) William Danielson, (21) Elaine Thena, (22) John Owens, and (23) Diane Anderson. The Second Amended Complaint asserts the following five causes of action: (1) violation of the ADA and § 504 of the Rehabilitation Act; (3) violation of § 1983 ; (4) violation of § 1985; (5) RICO. This matter now is before the Court on the following seven motions to dismiss:
(1) On January 9, 2019, ECF No. 45 was filed by (1) the South Carolina Department of Health and Human Services ("SCDHHS"); (2) Joshua Baker; and (3) Christian Soura pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
(2) On January 9, 2018, ECF No. 46 was filed by Defendants (1) State of South Carolina, (2) South Carolina Department of Disabilities and Special Needs, (3) Patrick Maley, (4) Beverly Buscemi, (5) Kathi Lacy, (6) Thomas Waring, and (7) Susan Beck (referenced herein as the State and the DDSN Defendants) pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
(3) On February 6, 2019, ECF No. 55 was filed by Defendants (1) William Barfield, (2) Stanley Butkus, (3) William Danielson, (4) Robert Kerr & Kerr and Company, and (5) Lois Park Mole pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
(4) On February 6, 2019, ECF No. 56 was filed by (1) Defendant Mary Poole pursuant to Fed. R. Civ. P. 12(b)(4) on the ground of insufficient process.
(5) On March 11, 2019, ECF No. 64 was filed by (1) Defendant the Office of the Governor pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
(6) On March 11, 2019, ECF No. 65 was filed by (1) Defendant Mary Poole pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
(7) On April 3, 2018, ECF No. 73 was filed by Defendants (1) Henry D. McMaster and (2) Nimrata "Nikki" Haley pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the Second Amended Complaint fails to set forth a claim upon which relief can be granted.
As of May 22, 2019, these seven motions to dismiss were all fully briefed, and thus the motions to dismiss are ripe for review.
II. Factual History
For purposes of these motions, all facts alleged in Plaintiffs’ Second Amended Complaint ("SAC") are accepted as true. This suit is brought by Plaintiff Debra Grate ("Grate"), in her capacity as Personal Representative for the Estate of Latoya Nicole Valentine, who died on September 21, 2017, and by Debra Grate, in her individual capacity as the sister and caregiver of Valentine and as a taxpayer.
Latoya Valentine ("Valentine") was an intellectually and mentally disabled individual who was qualified for and received Medicaid. Valentine, having an IQ of 36, was born on October 11, 1997. Valentine lived in a group home call Jewel CTH II ("Jewel"). Plaintiffs allege that abuse occurred at Jewel. Among other incidents, Plaintiffs allege Valentine was burned by a cigarette on her chest, that she was grabbed by her hair and dragged into a bathroom where she was slapped in the face, and that she was forced to repeatedly walk around an asphalt track despite bruises on her feet, onychomycotic nails, bilateral lesions on the balls of her feet, and aching pain. Plaintiffs also allege other incidents of abuse.
Plaintiffs allege that although Valentine repeatedly asked to return to live with her family, Grate was never informed of the feasible alternative of Valentine receiving personal care attendant or nursing services at home, or that Grate was entitled to be paid to provide personal care attendant services for caring for Valentine in the family home.
Plaintiffs claim that when Grate attempted to remove Valentine from the group home, the house manager retaliated by telling Valentine that her family did not care about her and refusing Valentine's requests to communicate with her family.
Sometime in 2017, Valentine was moved from the group home to her sister Grate's home. Plaintiffs allege Valentine had been diagnosed and treated for hyponatremia, a condition that can cause rapid brain swelling; however, Grate alleges she was unaware of this condition when Valentine moved home. Valentine passed away on September 21, 2017. Valentine lost consciousness, and fell in the shower at Grate's home, hitting her head. Valentine was transported by ambulance to the hospital where she later passed away. On December 11, 2017, Grate was appointed as Personal Representative of Valentine's estate.
In the SAC, Plaintiffs allege the following descriptions of Defendants:
4. Henry D. McMaster is the Governor of the State of South Carolina and he formerly served as Lieutenant Governor and Attorney General of South Carolina.
5. Nimrata "Nikki" Haley served in the South Carolina House of Representatives from 2005 until 2011, and served as Governor from 2011 until February, 2017.
6. The South Carolina Department of Health and Human Services (DHHS) administers all Medicaid programs pursuant to S.C. Code 44-6-30 and federal law.
7. By state statute, the South Carolina Department of Disabilities and Special Needs (DDSN) is responsible for providing care and treatment to persons who have intellectual and related disabilities pursuant to S.C Code 42-20-10 et. seq. and 42-21-10 et. seq. and federal law.
8. The Pickens County Disabilities and Special Needs Board (PCDSNB) is responsible for the administration, planning and coordination of services for persons with intellectual disabilities and their families and it is responsible for the review and evaluation of all county disabilities and special needs services. S.C. Code 44-20-375 and 44-20-385.
9. Haley appointed Anthony Keck as director of DHHS in 2011, but replaced him with Christian Soura in 2014, when Keck advised Haley about violations of the Medicaid Act and that persons with intellectual disabilities were being abused, neglected and exploited.
10. Several weeks after Keck directed Buscemi to dismantle the band funding system to come into compliance with the Medicaid Act, Haley replaced Keck with Soura.
11. Haley appointed William Danielson to the governing board of DDSN.
12. Joshua Baker is the current director of DHHS, having formerly served as deputy chief of staff for budget and policy for Governor Nikki Haley.
13. Robert Kerr was a CPA and formerly served as director of DHHS.
14. William Barfield served as Senior Budget Analyst and later Deputy State
Director of Administration in charge of finances for DDSN until 2009.
15. Then-Governor Haley hired Patrick Maley as her third Inspector General in 2012, a position he held until Haley resigned as Governor in 2017 and Maley moved to DDSN, where he subsequently became interim director of DDSN.
16. Beverly Buscemi served as Director of DDSN from 2010 until 2017, when she accepted employment from Community Options, Inc.
17. Mary Poole became director of DDSN in 2018, retaining Maley as a Deputy Director.
18. Kathi Lacy served as Associate State Director of DDSN until her retirement in 2014, when she began providing services under various consulting contracts with DDSN and its agents.
19. Buscemi hired Susan Beck as Associate State Director of DDSN when Lacy "retired" in 2014, assuming the responsibilities of tracking abuse, neglect and exploitation of clients, assessing needs for services and establishing budgets for DDSN clients.
20. Stanley Butkus was the director of DDSN from 1997 until 2009 and he returned to South Carolina as director of Mentor, Inc., a provider of group home services which has an extremely high rate of abuse and neglect.
21. Lois Park Mole was DDSN's liaison with the General Assembly and she remains employed by DDSN.
22. Elaine Thena is the Director of the Pickens County Disabilities and Special Needs Board (PCDSNB).
23. John Owens is the Assistant Director at the Pickens County Disabilities and Special Needs Board (PCDSNB).
24. Diane Anderson was the house manager at Jewel CTH II ("Jewel").
25. The Office of the Governor, DHHS, DDSN and PCDSNB are all public entities.
Plaintiffs also allege the following:
DDSN's Band Payment System and Failure to Protect Residents from Harm
61. DDSN receives funds from the General Assembly to provide family support services that are not covered by Medcaid, as well as funds to pay the state match for Medicaid waiver services.
62. Since 2004, state and federal investigators have provided the Governor, legislators and the agencies results of investigations documenting the diversion of funds, violations of federal statutes and regulations and the failure to protect DDSN clients from harm.
63. While operating its programs with 31 direct care positions unfilled, Thena and PCDSNB conspired with other Defendants pay at least $50,000 from funds allocated by the General Assembly for services to construct a dormitory on the campus of a private religious college, called the Jerico Project, in violation of the State Constitution and Buscemi pledged at least a quarter million dollars with authorization from the governing board of DDSN.
64. This conversion of funds was made during the year when Valentine was assaulted by staff while the PCDSNB had 31 unfilled positions, and Grate was not informed of their right to receive personal care attendant and nursing services at home, or of Grate's right to be paid to provide attendant care services.
65. Defendants knew or should have known this conversion of at least $350,000.00 of funds allocated by the General Assembly to provide services was illegal, based on warnings of the Legislative Audit Council (LAC), reporting to the agencies and the Governor's
Office that huge sums were being improperly spent to purchase and renovate real estate not authorized in the state budget.
66. The 2008 LAC audit criticized DDSN for spending funds allocated by the General Assembly for services to pay for other purposes, but DDSN has continued to spend millions of dollars allocated for services to buy and upfit real estate without authorization from the legislature, including congregate day and residential facilities which violate the ADA, with some purchased with state funds diverted to selected private corporations.
67. In 2017, DDSN continued its practice of converting millions of dollars intended and allocated by the General Assembly to be spent on "Family Support" services to other purposes.
68. Also in 2017, without notice to or authorization of the DDSN Commission or the General Assembly, Defendants Buscemi, Beck, Waring joined Baker and other DHHS officials in a scheme to convert approximately $1 million provided in the state budget to provide services to waiver participants to establish a new division called the "Waiver Administration Division" (WAD) to review and systemically reduce services provided to waiver participants living at home in disregard for the medical necessity of those services and the integration mandate.
69. DDSN Commissioners first learned of this new "WAD" late in 2017, when questioning why DDSN's administrative costs increased by more than a million dollars over the amount authorized by the Commission.
70. Instead of informing waiver participants who are at risk of institutionalization that they may be entitled to receive hours in excess of the caps established in 2010, the WAD even further reduced hours provided to hundreds of waiver participants who live at home.
III. Applicable Law to Plaintiffs’ Causes of Action
a. Violations Title II of the Americans with Disabilities Act and the Rehabilitation Act
42 U.S.C. § 12132 states:
Subject to the provisions of this subchapter, 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.
Additionally, under 42 U.S.C. 12131(1) :
A "public entity" means
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of Title 49).
29 U.S.C. § 794 of the Rehabilitation Act states:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. A "program or activity" means all of the operations of
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or
(B) a local educational agency (as defined in section 7801 of Title 20), system of career and technical education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance.
b. Violations of 42 U.S.C. § 1983
42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (internal citations omitted).
In order to establish supervisory liability under § 1983, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices,"; and (3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud , 13 F.3d 791, 799 (4th Cir. 1994) (internal citations omitted).
c. Violation of 42 U.S.C. § 1985
42 U.S.C. § 1985 states:
If two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws ... whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
To state a claim under 42 U.S.C. § 1985(3), a plaintiff must establish:
(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.
A Soc'y Without A Name v. Virginia , 655 F.3d 342, 346 (4th Cir. 2011).
d. Violation of Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962
"To state a civil RICO claim, a plaintiff must allege that the defendants engaged in, or conspired to engage in, a ‘pattern of racketeering activity.’ " US Airline Pilots Ass'n v. Awappa, LLC , 615 F.3d 312, 317 (4th Cir. 2010) (quoting 18 U.S.C. § 1962 ).
"The elements of a claim for the violation of the provisions of civil RICO are: 1) conduct [or predicate acts], 2) of an enterprise, 3) through a pattern, 4) of racketeering activity." Green Ventures Int'l, LLC, P'ship v. Guttridge , No. 2:10-CV-01709-MBS, 2010 WL 5019363, at *4 (D.S.C. Dec. 1, 2010) (citing Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 87 L.Ed.2d 346 (1985) ). "In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation." Sedima, S.P.R.L. v. Imrex Co ., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985).
IV. Legal Standard
A complaint may be dismissed if it fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Under Rule 8 of the Fed. R. Civ. P., the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face to survive a motion to dismiss. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Atlantic Corp. v. Twombly , 550 U.S. 544, 580, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In reviewing the adequacy of a complaint, a court "should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 555, 127 S.Ct. 1955. According to the U.S. Court of Appeals for the Fourth Circuit, "a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs. , 7 F.3d at 1134. V. Discussion
a. Motion to Dismiss filed by (1) the South Carolina Department of Health and Human Services ("SCDHHS"); (2) Joshua Baker; and (3) Christian Soura (collectively "the SCDHHS Defendants") (ECF No. 45)
i. The ADA and § 504 claims against Defendant Baker in his official capacity are dismissed as duplicative.
First, Defendant Director Baker argues that the federal claims against him in his official capacity as the current Director of SCDHHS should be dismissed because they are duplicative of the identical claims also against the agency SCDHHS.
Plaintiffs respond that the federal claims against Director Baker and Director Soura are not duplicative and thus should not be dismissed. Since only Defendant Baker argues that the federal claims against him in his official capacity as the current Director of SCDHHS are duplicative, this Court will not address Plaintiffs’ arguments regarding Defendant Soura. This Court will also not address Plaintiffs’ additional response arguments regarding whether the claims against Baker and Soura in their individual capacity are duplicative because Defendants did not argue that the individual capacity claims are duplicative.
In response, Plaintiffs argue in regards to the claims for violation of the ADA and the Rehabilitation Act, "the claims are against the agency and it matters not whether Baker and Soura are named to those actions." Plaintiffs cite to Pashby v. Delia , 709 F.3d 307 (4th Cir. 2013) and argue: "In the leading ADA case in the Fourth Circuit, the director of the Medicaid Agency is named as ‘Albert Delia, In his official capacity as Secretary of the N.C. Department of Health and Human Services, Defendant-Appellant.’ "
In regards to the § 1983 claim, Plaintiffs set forth that Defendant Baker is sued in his individual and official capacity. It appears that Plaintiffs’ § 1983 claim is not asserted against Defendant SCDHHS and thus the § 1983 claim cannot be duplicative.
As to the 42 U.S.C. § 1985 and RICO claims, Plaintiffs assert that these claims are only brought against the named Defendants in their individual capacity. Since the § 1985 and RICO claims are not asserted against Defendant Baker in his official capacity, they cannot be duplicative of the claims against SCDHHS.
Plaintiffs’ response brief states: Claims brought under 42 U.S.C. and RICO...." It appears this was a typo and Plaintiffs meant to refer to their claims brought under 42 U.S.C. § 1985 and RICO.
Thus, only the ADA and § 504 claims against Defendant Baker in his official capacity are relevant to this argument. Neither the § 1983 claim, the § 1985 claim, nor the RICO claims are relevant because Plaintiff does not name both the agency and the director in his or her official capacity in these claims.
Official-capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent." Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (quoting, Monell v. New York City Dept. of Social Services , 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Therefore, suits against the state officials in their official capacity are suits against the state. Hafer , 502 U.S. at 25, 112 S.Ct. 358 ; Will v. Michigan Sept. of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.")
"The Fourth Circuit has upheld dismissal of a claim against a defendant in his official capacity as duplicative where the municipal defendant was also sued. See Love–Lane v. Martin , 355 F.3d 766, 773 (4th Cir. 2004) (‘The district court correctly held that the § 1983 claim against Martin in his official capacity as Superintendent is essentially a claim against the Board and thus should be dismissed as duplicative.’)." Price v. Town of Atl. Beach , No. 4:12-CV-2329-RBH, 2015 WL 58115, at *2 (D.S.C. Jan. 5, 2015)
Plaintiffs’ argument that "the leading ADA case in the Fourth Circuit" names the director of the Medicaid Agency in his official capacity is misleading. After a review of Pashby v. Delia , 709 F.3d 307 (4th Cir. 2013), it appears that the only named defendant in that case was the director of the Medicaid Agency in his official capacity. The Medicaid agency was not also named as a defendant. Thus, Pashby is not instructive because in that case, the claims could not have been duplicative since there was a single defendant.
The Court agrees with Defendant Baker that the ADA and § 504 Rehabilitation Act claims are duplicative of the claims against SCDHHS. Any judgment rendered against Baker in his official capacity as director of SCDHHS would be tantamount to a judgment against SCDHHS itself. Thus, the Court dismisses the ADA and § 504 claims against Defendant Baker in his official capacity.
This Court notes that in reached a similar result previously in Stogsdill . On appeal, the Fourth Circuit did not disturb this Court's ruling that the claims against Director Keck and SCDHHS were duplicative. See Stogsdill v. Keck, No. 3:12-cv-0007-JFA, 2014 WL 5822782, at *13 (D.S.C. Nov. 10, 2014) ("The claims against both Keck and SCDHHS are duplicative because any judgment rendered against Keck in his official capacity as director of SCDHHS would be tantamount to a judgment against SCDHHS itself. Therefore ... the Court dismisses all causes of action against Defendant Keck in his official capacity.").
ii. SCDHHS is not entitled to dismissal of the ADA and § 504 claims.
Defendant SCDHHS cites to United States v. Georgia to point out that Title VII validly abrogates state sovereign immunity and "creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment." However, Defendant SCDHHS argues that "[t]here do not appear to be any factual allegations against SCDHHS, other than conclusory statements, showing or tending to show it actually violated Plaintiffs’ Fourteenth Amendment rights." Defendant SCDHHS next argues that in any event, the SAC fails to allege facts sufficient to constitute a cause of action under the ADA or § 504.
In response, Plaintiffs argue that Defendants have applied the incorrect standard to the Title II ADA claims because the correct standard for an ADA integration mandate claim established in Olmstead v. L.C., Pashby v. Delia , 709 F.3d 307 (4th Cir. 2013), the DOJ Statement, and Olmstead Update No. 4 is not the same as an employment claim under the ADA. Plaintiffs claim they "have alleged systemic violations of the ADA and the Rehabilitation Act going back for many years, which were not discovered until after the appointment of Grate as her sister's personal representative."
Plaintiffs agree with Defendants that under United States v. Georgia , Title VII validly abrogates state sovereign immunity and "creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment." However, Plaintiffs assert that throughout the SAC, they have alleged plausible factual allegations showing violations of their Fourteenth Amended rights. Plaintiffs argue:
Plaintiffs have shown that Valentine was a disabled person, as defined by the ADA, the state determined that she was capable of living in a less restrictive setting in the community and she did not object to placement outside of the institutional setting of a group home, meeting her obligation under Olmstead v. L.C., 527 U.S. 581 [119 S.Ct. 2176, 144 L.Ed.2d 540] (1999) to allege violations of the integration mandate of the ADA. Once Plaintiffs met their prima facie burden, then burden shifted to the state to prove that providing services and supports required by the integration mandate would not fundamentally alter the state's programs. As the South Carolina Court of Appeals ruled in Stogsdill v. DHHS, 410 S.C. 273 (S.C. Ct. Ap. 2014) and Myers v. DHHS, 418 S.C. 608 (S.C. Ct. App. 2016), DHHS failed to meet that burden as it applied to the 2010 caps on services. Here, Plaintiffs have alleged a much broader scope of violations than the state court recognized in Stogsdill and Myers which must be analyzed under the cost assessment standards set forth in Olmstead and the DOJ Statement.
This Court agrees that Defendants fail to mention the integration mandate, which was applied in Olmstead v. L.C. , 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).
The ADA was enacted by Congress in 1990 and provides that no qualified individual with a disability "shall by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. For purposes of the Act, a qualified individual is defined as a person with disabilities "who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." Id. at § 12131(2). The ADA does not require that public entities provide "services of a personal nature, including eating, toileting, or dressing"; however, those states that elect to offer such services, are required to do so "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. §§ 35.135, 35.130(d). This implementing regulation of the ADA is commonly referred to as the "integration mandate."
An analogous provision exists for § 504 of the Rehabilitation Act and requires recipients of federal funds to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51(d). In light of the fact that both the ADA and § 504 impose the same integration requirements, it is appropriate for the Court to consider both of these claims together. Pashby , 709 F.3d at 321 ("We consider their Title II and section 504 claims together because these provisions impose the same integration requirements.").
The antidiscrimination requirement of Title II was specifically addressed in the Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), wherein the Court set forth that "unjustified institutional isolation of persons with disabilities is a form of discrimination." Id. at 600, 119 S.Ct. 2176. The Court went on to hold,
[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities.
Id. at 607, 119 S.Ct. 2176.
However, "[r]egarding the State's obligation to avoid unjustified isolation of individuals with disabilities, the Attorney General provided that States could resist modifications that would fundamentally alter the nature of the service, program, or activity." Id. at 597, 119 S.Ct. 2176 (citing 28 C.F.R. § 35.130(b)(7) ) (internal quotation marks omitted). In practice, Title II's requirements and the Olmstead decision "extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings." Pashby , 709 F.3d at 321 (citing U.S. Dept. of Justice, Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C. ).
After detailed consideration of the arguments, the Court agrees with Plaintiffs that they have sufficiently alleged violations of the integration mandate. Thus, Plaintiffs have stated a claim under the ADA and Rehabilitation Act and dismissal is not appropriate.
iii. The ADA and § 504 claims are not time-barred.
The SCDHHS Defendants next argue that both the ADA and § 504 claims are time-barred. The SCDHHS Defendants argue that as this Court has done in the past, it should borrow the one-year statute of limitations found in the South Carolina Human Affairs Law. The SCDHHS Defendants set forth that this action was filed on April 3, 2018, so the only non-time-barred ADA and § 504 claims would be those that occurred on or after April 3, 2017.
In response, Plaintiffs first argue that South Carolina's general three-year statute of limitations applies and not the one-year statute of limitation found in the South Carolina Human Affairs Law. Plaintiffs argue the statute of limitations is also extended by five years, pursuant to the state tolling statute S.C. Code Ann. § 15-3-40, as applied in Estate of Mims v. DDSN.
The Court will address the applicable statute of limitations and whether Plaintiffs are entitled to tolling under S.C. Code Ann. § 15-3-40.
The parties agree that neither Title II of the ADA nor the Rehabilitation Act expressly proscribes a statute of limitations and that in calculating the statute of limitations for a claim brought under the Rehabilitation Act, "the most appropriate or analogous statute of limitations derived from the state law most applicable to this federal statute is to be used." Childers v. County of York South Carolina , No. 0:06-897-CMC, 2008 WL 552879, at *10 (D.S.C., Feb. 26, 2008) (citing 42 U.S.C. § 1988(a) ; Wilson v. Garcia , 471 U.S. 261, 268, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) ).
"Because Title II of the ADA does not contain a statute of limitations, federal courts ‘borrow the state statute of limitations that applies to the most analogous state-law claim.’ " Semenova v. Maryland Transit Admin. , 845 F.3d 564, 567 (4th Cir. 2017). However, the parties disagree as to which South Carolina law is the most "analogous statute."
Under South Carolina law, the statute of limitations for a personal injury claim is three years. S.C. Code Ann. § 15–3–530(5). On the other hand, South Carolina's Human Affairs Law contains a one-year statute of limitations.
Plaintiffs set forth that the three-year statute of limitations for personal injury actions should be applied. Plaintiffs state:
This Court held in Levin v. SCDHHS , 2015 U.S. Dist. LEXIS 31754, *15-18 (S.C.D.C. 2015) that the statute of limitations for ADA actions was one year, erroneously applying Title I standards to a Title II case. But, in the first appeal of that case to the Fourth Circuit, that Court remanded with directions for this Court to consider whether defendants had violated the anti-retaliation prohibition of the ADA. Stogsdill v. S.C. HHS , 674 Fed. Appx. 291 (4th Cir. 2017). If the Fourth Circuit had agreed that the statute of limitations for ADA claims was one year, it would never have remanded that case for a ruling on an ADA issue. This Court may take judicial notice that the one year limitation applied by this Court in Stogsdill v. Sebelius is again on appeal to the Fourth Circuit in that case. Case Number 17-1880.
As Defendants point out, this Court recognizes that it has previously applied the one-year statute of limitations from the South Carolina Human Affairs Law as the most analogous South Carolina state law to the federal statute. However, those decisions were prior to the Fourth Circuit's decision in Semenova v. Maryland Transit Administration , 845 F.3d 564 (4th Cir. 2017).
In their Response Brief, Plaintiffs ask the Court to "take judicial notice that the one year limitation applied by this Court in Stogsdill v. Sebelius is again on appeal to the Fourth Circuit in that case." Since Plaintiffs’ brief was filed, the Fourth Circuit issued its opinion in Stogsdill .
In Stogsdill v. Azar , the Fourth Circuit stated in a footnote:
Given this disposition, we need not address the district court's alternative ground for entering judgment for the state defendants: that Levin's ADA and Rehabilitation Act claims were untimely under a one-year statute of limitations borrowed from South Carolina's Human Affairs Law. See Semenova v. Md. Transit Admin. , 845 F.3d 564, 567–68 (4th Cir. 2017) (discussing "borrow[ing]" of analogous state limitations periods in ADA and Rehabilitation Act cases). We note, however, that Semenova , which issued only after the district court's decision in this case, clarifies the circumstances under which it will be appropriate in an ADA or Rehabilitation Act case to borrow a limitations period from an anti-discrimination law like South Carolina's Human Affairs Law, rather than a state's ordinary statute of limitations for civil actions. Id.
Stogsdill v. Azar , No. 17-1880, 765 Fed.Appx. 873, 2019 WL 1131949, at *4 n.2 (4th Cir. Mar. 12, 2019).
Thus, the Court turns to Semenova for guidance to determine if it is appropriate in this ADA and Rehabilitation Act case to borrow the limitations period from the South Carolina's Human Affairs Law, rather than South Carolina's ordinary statute of limitations for civil actions.
The Semenova court held that Maryland's more general three-year statute of limitations applied to the ADA and Rehabilitation Act claims and not Maryland's anti-discrimination law containing a two-year statute of limitations. Semenova , 845 F.3d at 566. The court reasoned that "the Maryland Law d[id] not provide Appellant ‘the same rights and remedies’ as the ADA because it does not provide a cause of action for disability discrimination in the provision of public services." Id. at 567.
Plaintiffs argue that like in Semenova , "[t]he South Carolina Human Affairs Law does not provide the same remedies as the ADA, and it would be error for this Court to apply that standard and Title I rules to the facts alleged in this case, especially when the Human Affairs Commission applies a three year statute of limitations to public accommodations claims."
This Court agrees that the South Carolina Human Affairs Law does not provide "the same rights and remedies" as the ADA to Plaintiffs. See Semenova , 845 F.3d at 568 ("In A Society Without A Name, Wolsky, and McCulloch, we applied state statutes of limitations to federal claims, at least in part, because the relevant state laws also allowed claims for the same type of discrimination the plaintiffs alleged pursuant to federal law.); see also Ott v. Maryland Dep't of Pub. Safety & Corr. Servs. , 909 F.3d 655, 659 (4th Cir. 2018). ("We consider whether the state law prohibits the same type of discrimination as the federal law, tracks the federal law's language, and requires the state to promulgate regulations consistent with the federal law.").
The Court also notes that Judge Gergel's reasoning in a recent opinion is persuasive. In Gresham v. Arclabs, LLC , the court reasoned:
The SCHAL, as with the Maryland statute addressed by the Fourth Circuit in Semenova , "only recognizes causes of action [for disability discrimination] in limited circumstances." Semenova , 845 F.3d at 568. Specifically, the SCHAL prohibits disability discrimination in employment, S.C. Code Ann. § 1-13-80, in conducting certain medical examinations or inquiries of a job applicant or employees, S.C. Code Ann. § 1-13-80, and applies to state agencies, departments, local subdivisions, employers, employment agencies, labor organizations, and local governmental bodies, S.C. Code Ann. § 1-13-90(c), (d). These claims are subject to, at most, a one-year statute of limitations. See S.C. Code Ann. § l-13-90(d)(6). However, noticeably absent from these covered claims are any claims against educational institutions or facilities receiving state or federal funding.
Gresham v. Arclabs, LLC , No. 9:19-CV-1237-RMG, 2019 WL 3020931, at *2 (D.S.C. July 10, 2019).
Next, Plaintiffs’ assert that the statute of limitations should be extended by five years pursuant to the tolling statute applied in Estate of Mims v. S.C. Dep't of Disabilities & Special Needs , 422 S.C. 388, 399, 811 S.E.2d 807, 813 (Ct. App. 2018), reh'g denied (Apr. 13, 2018), cert. denied (Aug. 3, 2018). Plaintiffs argue:
S.C. Code Ann. § 15-3-40 extends the statute of limitations in South Carolina by five years when the plaintiff, like Valentine, has a "mental condition which precludes understanding the nature or effects of one's acts, an incapacity to manage one's affairs, an inability to understand or protect one's rights, because of an over-all inability to function in society, or the mental condition is such as to require care in a hospital."
In reply, Defendants argue that in federal question cases, the tolling provisions are generally not borrowed even when the limitations period are. Defendants cite to Lewis v. Richmond City Police Dep't , 947 F.2d 733, 735 (4th Cir. 1991) ("In federal question cases, although the limitations period is borrowed, the tolling provisions generally are not.").
However, this Court is guided by subsequent case law explaining that in a federal question case, when a state statute of limitations is borrowed, the tolling period generally is borrowed as well.
"[I]n two cases in which the subsequent action was a federal question action
based on § 1983, which lacks a specific limitations period and therefore "borrows" its limitations period from state law, the Court looked to state law for the applicable equitable tolling rule. See Chardon v. Soto, 462 U.S. 650, 660–62, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983) (applying state rule of equitable tolling during pendency of federal class action); Board of Regents v. Tomanio, 446 U.S. 478, 484–86, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (applying state rule against equitable tolling during pendency of state individual action).
Wade v. Danek Med., Inc. , 182 F.3d 281, 289 (4th Cir. 1999).
Additionally, the United States Supreme Court stated:
We recognized that when a federal statute is deemed to borrow a State's limitations period, the State's tolling rules are ordinarily borrowed as well because " ‘[i]n virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling....’ " 490 U.S. at 539, 109 S.Ct. 1998 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) ); see also Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (in § 1983 actions "a state statute of limitations and the coordinate tolling rules" are "binding rules of law").
Heimeshoff v. Hartford Life & Acc. Ins. Co. , 571 U.S. 99, 116, 134 S.Ct. 604, 187 L.Ed.2d 529 (2013).
This Court finds it is appropriate to apply the five-year tolling provision in S.C. Code Ann. § 15-3-40.
Plaintiffs also argue that under South Carolina's discovery rule, the statute of limitations did not begin to run until after Grate was appointed as personal representative of Valentine's estate on December 11, 2017. And lastly, Plaintiffs assert the statute of limitations should also be extended, if necessary, by equitable tolling because Grate was unable to obtain records or information about her sister's condition and care until she was appointed by the probate court as Valentine's personal representative.
In determining when the statute of limitations begins to run, South Carolina follows the discovery rule:
According to the discovery rule, the statute of limitations begins to run when a cause of action reasonably ought to have been discovered. The statute runs from the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct. The date on which discovery of the cause of action should have been made is an objective, rather than subjective, question. In other words, whether the particular plaintiff actually knew he had a claim is not the test. Rather, courts must decide whether the circumstances of the case would put a person of common knowledge and experience on notice that some right of his has been invaded, or that some claim against another party might exist.
Bayle v. S. Carolina Dep't of Transp. , 344 S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001) (internal quotation marks and citations omitted).
Additionally, "[e]quitable tolling is a doctrine rarely applied in South Carolina to stop the running of statutes of limitations." Pelzer v. State , 378 S.C. 516, 520, 662 S.E.2d 618, 620 (Ct. App. 2008).
In this case, the application of the discovery rule and the doctrine of equitable tolling to Plaintiffs’ claims requires further factual development beyond the motion to dismiss stage. After discovery, the Court will revisit the issues of the discovery rule and equitable tolling if the statute of limitations issue is raised again.
Accordingly, South Carolina's general three-year statute of limitations applies to Plaintiffs’ ADA and Rehabilitation Act claims, and it is further tolled for five years under S.C. Code Ann. § 15-3-40.
iv. Plaintiffs have sufficiently stated a claim under the ADA and § 504.
The SCDHHS Defendants next argue that (1) Plaintiffs lack standing to sue Defendant SCDHHS under the ADA; (2) Plaintiffs do not allege a case or controversy that gives rise to an ADA or Rehabilitation Act claim within the limited period permitted under the applicable statute of limitations; (3) Plaintiffs are not entitled to compensatory damages; and (4) Plaintiffs fail to allege facts sufficient to establish a prima facie claim under the ADA or Rehabilitation Act. The SCDHHS Defendants assert these arguments are equally applicable to the Rehabilitation Act claims.
First, SCDHHS argues "assuming arguendo that Plaintiff suffered an injury in fact, there are no allegations in the Second Amended Complaint to show a causal connection between the injuries and the conduct complained of against SCDHHS." Defendant SCDHHS claims that the facts alleged against SCDHHS, "relate to medical services and care provided to Valentine by Defendant PCDSNB, caps on ID/RD waiver services that went into effect in 2010, and allocation or spending of funds." According to Defendant SCDHHS:
As to any allegation concerning the medical services and care provided to Valentine, SCDHHS is prohibited by statute from delivering of services. S.C. Code § 44-6-30. Therefore, any allegation relative to chemical restraints, or abuse/neglect that allegedly occurred during the providing of services would not involve SCDHHS or its employees. There are no allegations that Valentine was not receiving Medicaid services or that she was ever denied services that were requested and authorized. There are no allegations that Valentine was institutionalized, faced a substantial risk of institutionalization, or had any waiver services reduced, denied or terminated as a result of the 2010 waiver service caps. Since Valentine has not alleged that she did not receive requested Medicaid services or that her services were improperly reduced or denied, issues relative to spending are moot.
In response to the medical services and care allegations, Plaintiffs argue: "nothing in the state code or federal law relieves DHHS from its obligations to assure the health and welfare of waiver participants and to operate those programs in the best interest of participants by complying with each and every applicable state and federal law." Plaintiffs also assert that Defendants still had the obligation to inform Valentine, through Grate, of the feasible alternatives under the waiver. Plaintiffs also assert:
Plaintiffs have alleged that Valentine begged to leave the group home where she was being abused and live with her sister. SAC at ¶¶ 29 and 97. In paragraphs 37 and 46, Plaintiffs allege that Grate was prohibited from removing her sister from the group home, informing her that Valentine's aunt, who had no authority under the Adult Health Care Consent Act or any other statute to make decisions for her niece. What accommodations were requested is a factual issue that requires discovery and should be determined by the jury.
Plaintiffs again point out they have alleged that Defendant SCDHHS failed to make reasonable accommodations in its policies, practice, and procedures when such modifications have been necessary to allow waiver participants to receive services in the least restrictive setting.
As the United States Supreme Court has explained:
"[S]tanding contains three elements. First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not ‘conjectural’ or ‘hypothetical,’ " Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
Although scant, Plaintiffs have at least alleged that Grate requested to leave the group home and live with her sister. The Court agrees with Plaintiffs that "[t]he questions of whether Plaintiffs requested services not provided, whether DHHS met its obligation to inform Plaintiffs of feasible alternatives under the waiver, whether Valentine's death was caused by violations of these and other unmet obligations described in the SAC are questions of fact which cannot be determined at this juncture in the proceedings." Thus, Plaintiffs have standing to sue Defendant SCDHHS under the ADA.
Next, the SCDHHS Defendants argue that the SAC does not allege a case or controversy that would give rise to an ADA or Rehabilitation Act claim within the applicable statute of limitations. The crux of the argument is that Plaintiffs claims should be dismissed for the absence of a case or controversy because "there is no allegation that an administrative decision about in-home services was ever requested, the absence of a formalized decision is fatal to Plaintiffs’ ADA and Rehabilitation Act claims." The SCDHHS Defendants claim that "the issue of whether in-home services would have been funded for Valentine had they been requested is now nothing more than an abstract or hypothetical issue that does not, and never will, present a case or controversy and, therefore, the claim should be dismissed."
In response, in part, Plaintiff argues this argument fails for two reasons:
First, each of the agencies responsible for the administration and operation of the ID/RD waiver program, had an affirmative obligation to inform Valentine's representative of the feasible alternatives under the waiver, and there is no evidence in the SAC showing that the Defendants ever complied with this obligation. Levin v. S.C. HHS , 2015 U.S. Dist. LEXIS 98114 (S.C.D.C. 2015).
Secondly, whether or not Grate or Valentine requested additional supports outside of a group home is a matter of fact not resolved by review of the SAC.
The SAC states in paragraph 29:
In 2003, Valentine begged to return to live with her sister, but, instead of providing the supports Grate needed for her sister to return home, in 2004, Butkus, officials at DHHS, DDSN and PCDSNB moved Valentine to a group home operated by PCDSNB.
41. Despite knowing that the caps on services violate the ADA, neither the Governor's Office (McMaster, Haley, Soura and Baker) nor the agency Defendants requested funds from the General Assembly to provide additional services in excess of those arbitrary caps, as
required by Stogsdill v. DHHS and the integration mandate of the ADA and they ignored or have been consciously indifferent to the needs of persons like Valentine who could live at home safely if services in excess of the caps were provided.
See also SAC at ¶ 97 which states "Valentine begged to return home to live with her sister, but Defendants provided her no alternative but confinement under unconstitutional conditions in a group home ..." Plaintiffs have alleged that instead of providing the supports Valentine and Grate needed for her to live with her family, as required by the ADA, the Rehabilitation Act and the South Carolina Family Support Act (CITE), Valentine was chemically restrained for the convenience of staff at the group home, where she was psychologically and physically abused by the house manager. SAC at ¶¶ 30 and 50-52. Plaintiffs alleged that Defendants never informed Grate of her diagnosis and treatment for hyponatremia, a life threatening condition that caused Valentine to fall without warning, or that nursing and other services were feasible alternatives under the waiver.
Plaintiff then points out the following paragraphs in the SAC:
36. Valentine's family was never informed about Valentine being diagnosed with or treated for hyponatremia, a condition that can cause rapid brain swelling, resulting in a coma and death, or her history of passing out and falling in the congregate programs operated by Defendants.
37. So as to keep Valentine's family from knowing about the abuse and neglect she suffered, and her passing out at the facility, Defendant Anderson told other health care providers that she was Valentine's next of kin, attempting to prevent her family of learning of injuries and medical emergencies, but at other times, Anderson would tell health care providers that Valentine's aunt, who had no authority under the Adult Health Care Consent Act, was the family member with authority to make decisions.
39. Valentine suffered from ongoing abuse, neglect and exploitation living in facilities operated by the PCDSNB, which were monitored by DDSN and DHHS, including, but not limited to, physical assaults, being chemically restrained, being forced to perform tasks that caused pain and suffering, being forced to work for less than minimum wage, being financially exploited and being denied permission to communicate and live with her family.
44. Valentine's next of kin was not informed when she was treated at the emergency room for loss of consciousness when she allegedly fell out of a chair on March 31, 2016, but incident reports for all injuries and emergency room treatment and hospitalization were sent to DDSN.
45. On or about April 21, 2016, Grate took Valentine to the emergency room for an injury suffered at Jewel that appeared to be caused by a cigarette burn on her chest.
46. When Grate attempted to remove Valentine from the facility, after Valentine requested to live with Grate , Anderson and Owens retaliated by insisting that Valentine could not be moved without the consent of her aunt, who had no authority under the Adult Health Care Consent Act to make decisions for Valentine and PCDSNB later suggested that Valentine was having an inappropriate sexual relationship with a male relative attempting to prevent discharge.
48. Grate was not informed when Valentine was taken to the emergency room in 2016 with bruises on her feet, but Defendants kept the goal of walking around the track on her plan of care, requiring her to painfully navigate the trail.
49. This created a vicious cycle of Valentine responding violently in response to that pain, since she was unable to verbalize and report this abuse to authorities and Defendants responded to Valentine's behaviors by chemically restraining her with more chemical restraints.
50. When Grate again attempted to remove Valentine from PCDSNB's congregate programs, Anderson retaliated by telling Valentine that her family did not care about her and refusing her requests to communicate with her family.
51. Anderson refused Valentine's pleas to call her sister on March 31, 2017, then she grabbed Valentine by her hair, twisted her arm behind her back and dragged Valentine into the bathroom, where she demanded that Valentine take a shower, slapping her across her face.
54. Although Valentine repeatedly asked to return to live with her family, Grate was never informed of the feasible alternative of Valentine receiving personal care attendant or nursing services at home, or that Grate was entitled to be paid to provide personal care attendant services for caring for Valentine in the family home.
55. Had Defendants provided nursing and personal care services at home, and kept Grate informed about Valentine's medical conditions, Grate would have known that Valentine was at risk of falling when her sodium level dropped and her death could have been prevented.
56. In September, 2017, Valentine lost consciousness, as she had done at the group home (unbeknownst to Grate), and she fell in the shower at Grate's home, hitting her head.
57. Valentine was transported by ambulance to the hospital, where she died, but Grate did not learn of the condition which caused Valentine's sodium levels to drop until after her death.
96. DDSN and PCDSNB were responsible for placing Valentine where they knew or should have known of the abuse and neglect occurring, including beatings, and forcing Valentine to perform work and to comply with unconstitutional plans of care.
98. As a result of these violations, Valentine suffered unconstitutional deprivations of life, liberty, and property and Valentine was deprived of equal protection of the laws when she was assaulted by staff and other clients and Grate was denied liberty and property rights.
99. Defendants also violated the Fourth Amendment constitutional rights of Valentine and Grate, to be secure in their persons, property and houses to be free of seizure by the government.
Ripeness is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administration policies and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner , 387 U.S. 136, 148–149, 87 S. Ct. 1507, 18 L.Ed.2d 681 (1967). In assessing ripeness, courts take into account "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration." Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507 ). In light of these considerations, "[a] case is fit for judicial decision where the issues to be considered are purely legal ones and where the agency rule or action giving rise to the controversy is final and not dependent upon future uncertainties or intervening agency rulings." Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992) (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.).
Here, although not the most descriptive pleading, the Court finds that Plaintiffs’ SAC asserts enough factual allegations to allege that Valentine requested services and these requests were denied. Importantly, Plaintiff alleges that Valentine "requested to live with Grate." The Court notes that after discovery, this issue might be more appropriate at the summary judgment phase if factual development reveals that Valentine in fact never requested services and thus, they were never denied.
Next, the SCDHHS Defendants argue that "compensatory damages are not available under Title II of the ADA absent a showing of discriminatory intent." Defendants argue that Plaintiffs’ bare assertions against SCDHHS do not show discrimination toward Plaintiffs and thus the claim for compensatory damages should be dismissed.
In response, Plaintiffs cite various paragraphs in the SAC to show Plaintiffs have properly pled facts which demonstrate conscious indifference and intentional discrimination. Plaintiffs argue "[t]hese allegations, coupled with allegations throughout the SAC of Defendants’ knowledge of the systemic patterns of abuse, neglect and exploitation of clients in group homes provide plausible evidence of intentional discrimination."
At this stage, the Court agrees with Plaintiffs and will let the claim for compensatory damages proceed.
Next, the SCDHHS Defendants set forth that Plaintiffs fail to allege facts sufficient to establish a prima facie claim under the ADA. These Defendants mainly argue that Plaintiffs’ SAC does not show that services were not provided solely on the basis of Valentine's disability.
After careful consideration of the arguments, at this stage, the Court finds Plaintiffs have stated a claim under the ADA and the Rehabilitation Act.
v. The § 1983 claim against Defendant Baker in his official capacity is dismissed.
Defendant Baker argues he is entitled to dismissal of the § 1983 claim in his official capacity because he is not a "person" and thus not subject to suit under § 1983.
Plaintiffs argue that the "[c]laims against Baker in his official capacity should not be dismissed for the same reasons Judge Lewis denied his motion in Timpson v. Haley ." Plaintiffs’ citation to Judge Lewis's Order is misleading. See Timpson v. Haley , No. CV 6:16-1174-MGL, 2017 WL 588497 (D.S.C. Feb. 14, 2017). In that case, Judge Lewis rejected Defendant Soura's argument that the plaintiffs’ claims against him in his official capacity were duplicative of the claims against the agency itself. Judge Lewis reasoned:
This Court notes Judge Lewis's Order addressed Defendant Soura and not Defendant Baker.
"Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, ... a State cannot be sued directly in its own name regardless of the relief sought."
Kentucky v. Graham , 473 U.S. 159, 171 n.14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). For this reason, "implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State." Id. In that the State's policy regarding Medicaid waivers can "be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State[,]" id. , the Court will deny Defendant Soura's request to be dismissed from this action in his official capacity.
Timpson v. Haley , No. CV 6:16-1174-MGL, 2017 WL 588497, at *2 (D.S.C. Feb. 14, 2017).
In contrast to Timpson , here, prospective relief is not an issue because Valentine has passed away. The Court agrees with Defendant Baker that under Will v. Michigan Department of State Police , a state official cannot be sued in his official capacity for damages under § 1983. Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) ("We hold that neither a State nor its officials acting in their official capacities are "persons" under § 1983.").
Plaintiffs next offer a lengthy argument regarding supervisory liability, which has no bearing on whether Defendant Baker in his official capacity is considered a "person" under § 1983.
Thus, the § 1983 claim is dismissed against Defendant Baker in his official capacity.
vi. Defendants Soura and Baker in their individual capacities are not entitled to dismissal of the § 1983 claim.
Next, Defendants Soura and Baker argue they are entitled to dismissal of the § 1983 claim. Among other arguments, Defendants argue that the SAC does not allege intentional acts; that the SAC does not allege facts sufficient to support an equal protection claim under § 1983 ; and that Plaintiffs have merely restated the elements of supervisory liability but have not set forth facts in support.
As an initial matter, this Court notes that above it dismissed the § 1983 claim against Defendant Baker in his official capacity and that Plaintiffs state Defendant Soura is only sued in his individual capacity on this claim. Thus, this argument is in regards to the § 1983 claims against Defendants Soura and Baker in their individual capacities only.
In response, Plaintiffs argue they have alleged facts supporting their supervisory liability claims. Plaintiffs contend that personal participation is not necessary to impose liability on "supervisory defendants." Plaintiffs argue:
Plaintiffs do not seek to hold Baker and Soura liable on the basis of their employer-employee relationship, but they alleged that liability attached when their own action or inaction amounted to gross negligence and deliberate indifference causing a constitutional violation. Bowen v. Watkins , 669 F.2d at 988. Plaintiffs’ complaint alleges not only that defendants Baker and Soura failed to control the behavior of subordinate employees, thereby ratifying or tacitly authorizing the conduct and creating a de facto departmental policy, but that they actively interceded to prevent former Director Keck attempted to bring DHHS into compliance with the ADA and the Medicaid Act.
After detailed consideration of the arguments, the Court agrees with Plaintiffs that Defendants may be held liable under supervisory liability. See Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994) ("Recognizing that supervisory liability can extend ‘to the highest levels of state government,’ we have noted that liability ultimately is determined ‘by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.’ ") (internal citations omitted).
Therefore, Defendants Soura and Baker in their individual capacities are not entitled to dismissal of the § 1983 claim.
vii. Dismissal based on qualified immunity is not appropriate at this stage.
Defendants Soura and Baker argue they are entitled to dismissal of any federal claim based on qualified immunity. Defendants first argue there are only conclusory allegations against Defendants Soura and Baker. Next, Defendants assert: "Even if the Court were to treat the conclusory statements as sufficient factual allegations, the allegations fail to show their performance of discretionary functions...."
In response, Plaintiffs argue:
Plaintiffs in this case have alleged that Defendants Soura and Baker were aware of the ongoing constitutional violations in DDSN programs and the illegal diversion of funds. Instead of notifying the legislature of the overpayment of more than ten million dollars to DDSN, during a year when home-based services were being drastically reduced, Soura and Baker both schemed, as members of the Governor's cabinet to falsely inform the General Assembly and the public that the Governor was requesting $13.3 million in new funds to provide new services to DDSN clients, knowing that most of those funds would be used to repay the debt to the federal government.
"[Q]ualified immunity provides government officials who are performing discretionary functions a defense from liability for § 1983 civil damages unless: ‘(1) the allegations underlying the claim, if true, substantiate a violation of a federal statutory or constitutional right; and (2) this violation was of a clearly established right of which a reasonable person would have known.’ " Occupy Columbia v. Haley , 738 F.3d 107, 121 (4th Cir. 2013) (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) ).
In the SAC, Plaintiffs have alleged that Defendants Soura and Baker were aware of the ongoing constitutional violations in SCDDSN programs and the illegal diversion of funds. The Court agrees with Plaintiffs that dismissal based on qualified immunity is not appropriate at this stage.
viii. Dismissal based on absolute immunity is not appropriate at this stage.
Next, Defendants Soura and Baker argue "the Second Amended Complaint extensively discusses budgetary and spending issues relative to Director Baker and Mr. Soura, especially during their times of employment with the Office of the Governor. To that extent, both defendants are entitled to absolute legislative immunity." Defendants Soura and Baker claim they are entitled to absolute immunity for any "assertions concerning budget requests, allocation of funds, and spending" as they are "uniquely legislative and Defendants would be entitled to absolute immunity."
Plaintiff cites to Kobe v. McMaster where Judge Seymour denied Governor McMaster's Motion to Dismiss which was in part based on a claim for legislative immunity where the plaintiff asserted acts that "were illegal and not within the scope of the governor's authority." Kobe v. McMaster , No. CV 3:11-1146-MBS, 2018 WL 1586428, at *24 (D.S.C. Mar. 30, 2018). Here, accepting all of Plaintiffs’ factual assertions in the SAC as true, Plaintiffs have alleged that Defendants Baker and Soura engaged in acts that were illegal and not within the scope of their authority. Thus, the Court agrees with Plaintiffs that dismissal based on absolute immunity is not appropriate at this stage.
ix. Dismissal of the 42 U.S.C § 1985 claim is not appropriate.
The SCDHHS Defendants next argue they are entitled to dismissal of the 42 U.S.C § 1985 claim because (1) the claim fails on the merits; and (2) Defendants are entitled to dismissal of all civil conspiracy claims pursuant to the intracorporate immunity doctrine.
The SCDHHS Defendants first argue that the disabled do not constitute a class for purposes of 42 U.S.C § 1985. The parties agree that neither the United States Supreme Court nor the Fourth Circuit Court of Appeals have had the occasion to address this issue and there is a split among the circuits. See Freyre v. Hillsborough Cty. Sheriff's Office , No. 8:13-CV-02873-T-27, 2014 WL 6885913, at *13 (M.D. Fla. Dec. 5, 2014) ("Circuit courts that have ruled on the question are split, with the Second, Third, and Eighth Circuits holding they are, and the Sixth, Seventh, and Tenth Circuits holding they are not.") At this stage of the case, the Court will defer the question of whether the disabled constitute a class under § 1985. In Freyre v. Hillsborough Cty. Sheriff's Office , the Middle District of Florida explained:
Moreover, there is authority to defer the question of whether the disabled can constitute a class under § 1985(3) to a later stage of the case. At the motion to dismiss stage, "there is no reason for this court to "rush to judgment" and attempt to predict what the Eleventh Circuit will ultimately decide about the merits of a disability conspiracy claim...." Hens on v. City of Gadsden, No. 4:14-cv-163-VEH, 2014 U.S. Dist. LEXIS 87477 at *8, 2014 WL 2972938 (N.D. Ala. June 27, 2014). Accordingly, for the purposes of these motions, the Court will assume that the disabled can be protected by § 1985(3).
Freyre , 2014 WL 6885913, at *13.
For purposes of these motion, the Court will assume without deciding, that the disabled constitute a protected class under § 1985. The Court notes this issue will be decided at a later stage of the case if raised again.
Next, the SCDHHS Defendants argue even if the disabled are a protected class, Plaintiffs have not stated a claim for conspiracy because they cannot show that the SCDHHS Defendants were "motivated by a specific class-based, invidiously discriminatory animus."
In response, Plaintiffs argue they have stated a claim because:
Plaintiffs described a scheme involving two Governors and employees of two state and one local agency, acting outside of the scope of their employment, who conspired with former agency officials to divert hundreds of millions of state funds intended to provide Medicaid services (which translated into more than a billion dollars had those funds been matched with federal funds) for other purposes, thereby drastically reducing services that severely disabled persons like Valentine need to live at home. These reductions were calculated to be announced after the agencies’ budgets had been approved by the General Assembly, and the reductions in services were never authorized by the legislature and took effect prior to the House and
Senate returning just after the 2010 amendments went into effect. Indeed, the reductions conflicted with the clear legislative directive in the South Carolina Family Support Act to provide services and supports needed for DDSN clients to live with their families.
In the scheme described in ¶¶ 141-203, the named Defendants falsely informed thousands of families of severely disabled persons that caps on home-based services were unavoidable due to a drastic budget reduction, when, in fact, the amendments significantly increased not only the per capita cost, but also the number of persons forced into institutional care. At the same time, DDSN contracted with a former director of DHHS to perform an "independent" study of the agency's funding system, which was actually secretly ghost-written by the long-time finance director of DDSN. When the federal government audited the agencies and required payback of more than $10 million, to prevent the public and the legislature from learning of the unallowable costs, the Governor conspired with agency officials, Kerr and Barfield to secure $13.3 million under the guise of removing disabled persons from the waiting list. Funds allocated to provide services were also diverted by DDSN and two local DSN Boards (including the Pickens County DSN Board, which was 31 staff short when Valentine was beaten) to build a dormitory on the campus of a private religious school, in violation of the South Carolina Constitution, and without authorization from the General Assembly, or even knowledge of the governing board of DDSN. In furtherance of this scheme to reduce home-based services, again without authorization from the legislature or DDSN's governing board, the named Defendants spent more than a million dollars establishing a new division which further reduced home-based services without regard to the medical consequences.
Valentine and other DDSN clients and their families were harmed when funds intended by the legislature to provide safe and appropriate supports in both group homes and the homes of individual waiver participants were diverted and homes and workshops were left short-staffed.
After detailed consideration of the arguments, the Court agrees with Plaintiffs that they have sufficiently stated a claim under § 1985.
Next, the SCDHHS Defendants argue the § 1985 claim should be dismissed under the intracorporate immunity doctrine. In response, Plaintiffs argue:
Defendants are not entitled to dismissal based on intracorporate immunity because Plaintiffs alleged that the DDSN Defendants conspired with others who are not officials of DDSN and because some of the alleged violations were outside of the scope of employment. By DHHS’ admission, the local DSN Boards and DDSN are "separate and distinct" entities from DHHS. DHHS Defendants’ Memorandum (ECF 19) at 13, 14. See Young v. S.C. DDSN, 374 S.C. 360, 368, 649 S.E.2d 488, 492 (2007). The SAC contains allegations that Kerr and Barfield, who were not employees of any state agency since 2007 (Kerr) and 2009 (Barfield) participated in the alleged conspiracy and violated RICO, thereby destroying any "intracorporate immunity" defense.
In Anthony v. Ward, 336 Fed. Appx. 311 (4th Cir. 2009) and Pridgen v. Ward , 391 S.C. 238, 705 S.E.2d 58 (S.C. Court of Appeals 2010) appellate courts upheld awards to employees who brought claims of civil conspiracy against their
employers, two officials at the South Carolina Department of Corrections because, as here, the plaintiffs alleged that the defendants acted outside of the scope of their employment.
"[I]t is generally true that, under the intracorporate immunity doctrine, acts of corporate agents are acts of the corporation itself, and corporate employees cannot conspire with each other or with the corporation." e Plus Tech., Inc. v. Aboud , 313 F.3d 166, 179 (4th Cir. 2002).
Accepting Plaintiffs allegations as true, Plaintiffs alleged that the SCDDSN Defendants conspired with others who are not officials of SCDDSN and some of the alleged violations were outside of the scope of employment.
The Court agrees with Plaintiffs that Plaintiffs have stated a claim under 42 U.S.C § 1985 and thus dismissal is not appropriate at this stage.
x. Defendants are not entitled to dismissal of the RICO claims at this stage.
The SCDHHS Defendants argue that the RICO claims should be dismissed (1) for lack of subject matter jurisdiction; (2) because the SAC fails to state a claim upon which relief can be granted under the RICO; and (3) because Plaintiffs have failed to allege compensable damages under RICO.
In response, Plaintiffs mainly argue that following the 35-page limit imposed by this Court, they have provided a short and plain statement of their RICO claims.
After careful consideration of the SCDHHS Defendants’ various arguments set forth as to why the RICO claim should be dismissed, the Court agrees with Plaintiffs that at the motion to dismiss phase, dismissal of the RICO claims is not warranted.
The Court notes that these claims may be more appropriate at the summary judgment phase once discovery has taken place.
Accordingly, ECF No. 45 is granted in part and denied in part. The ADA and § 504 claims against Defendant Baker in his official capacity are dismissed as duplicative. Additionally, the § 1983 claim against Defendant Baker in his official capacity is dismissed.
b. Motion to Dismiss filed by (1) State of South Carolina, (2) South Carolina Department of Disabilities and Special Needs, (3) Patrick Maley, (4) Beverly Buscemi, (5) Kathi Lacy, (6) Thomas Waring, and (7) Susan Beck (collectively "the State and the SCDDSN Defendants") (ECF No. 46)
The State and the SCDDSN Defendants argue (1) most or all the ADA and Rehabilitation Act claims are barred by the applicable statute of limitations; and (2) the Second Amended Complaint does not allege a case or controversy that would give rise to an ADA or Rehabilitation Act claim.
As explained above, the general three-year statute of limitations is applicable in this case. Further, under S.C. Code Ann. § 15-3-40, the time period is tolled for an additional five years. Additionally, as explained above, Plaintiffs have alleged a case or controversy that would give rise to an ADA or Rehabilitation Act claim.
Next, the State and the SCDDSN Defendants argue that Plaintiffs’ second cause of action, the § 1983 claim, does not plead personal involvement by any of the individual SCDDSN Defendants, nor does it plead an actionable violation of federal law or facts showing proximate causation. Plaintiffs respond that they need not prove personal involvement under supervisory liability and additionally, the SAC alleges proximate causation. After careful consideration of the arguments, the Court finds Plaintiffs have sufficiently pled supervisory liability and have alleged proximate causation. Thus, dismissal of the § 1983 claim is not appropriate at this time.
The State and the SCDDSN Defendants also claim to the extent, if any, that any of the individual DDSN Defendants are sued under § 1983 in their official capacities, such claims are clearly barred. It appears Plaintiffs do not respond to this argument. The Court agrees it is well-settled that such actions for damages may not be brought. See Will v. Michigan Dep't of State Police , 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
The State and the SCDDSN Defendants also argue (1) the third and fourth causes of action (conspiracy under 42 U.S.C. § 1985 and RICO) are barred by the intracorporate conspiracy doctrine; (2) the third cause of action (conspiracy under 42 U.S.C. § 1985 ) does not state a claim; and (3) the fourth cause of action (civil RICO) should be dismissed because it is not pled with the specificity required by Rule 9, does not allege proximate cause, and fails to state a claim for other reasons. As set forth above, and after detailed consideration of the arguments, dismissal of Plaintiffs’ § 1985 and RICO claims are not appropriate at this stage.
The individual SCDDSN Defendants claim they are entitled to dismissal of any federal claim based on qualified immunity. However, this Court finds dismissal based on qualified immunity is not appropriate at this stage because Plaintiffs have set forth allegations that the SCDDSN Defendants intentionally violated Plaintiffs’ constitutional and statutory rights.
The State and Defendant SCDDSN contend that to the extent that the second through fourth causes of action ( § 1983, § 1985, and RICO) attempt to impose liability on the State or SCDDSN, those claims are barred by the Eleventh Amendment. Plaintiffs disagree and argue that Defendants are not entitled to Eleventh Amendment immunity.
First, Plaintiffs assert that the ADA expressly abrogates the States’ Eleventh Amendment Immunity with respect to claims brought under the ADA. Next, Plaintiffs argue § 504 is enforceable through private causes of actions, and the States are not immune from federal suits to enforce this provision. In support, Plaintiffs cite:
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
As Defendants SCDDSN and the State point out in in their Reply brief, "Plaintiffs offer no response to these Defendants’ contention that the Eleventh Amendment bars the second through forth causes of action...." Plaintiffs’ second through fourth causes of actions include the § 1983 claim, the § 1985 claim, and the RICO claim. Thus, Plaintiffs’ lengthy argument regarding the ADA and § 504 causes of action are irrelevant to this claim.
Plaintiffs also argue:
As to Defendants’ argument that the Eleventh Amendment prohibits official
capacity claims, the individual Defendants should be careful about what they request, and the individual Defendants should all be served and make a knowing waiver of the possibility that any legal fees, costs and monetary recovery awarded may come from their own pockets if certain official capacity claims were to be dismissed by Defendants’ motion.
The Court finds Plaintiffs’ repeated warning to Defendants to "be careful about what they request" is not a legal argument for this Court to address.
Therefore, this Court agrees that the Eleventh Amendment bars the § 1983, § 1985, and RICO causes of action against Defendants SCDDSN and the State, and thus, these causes of actions are dismissed as to Defendants SCDDSN and the State.
Accordingly, ECF No. 46 is granted in part and denied in part. The § 1983, § 1985, and RICO causes of action against Defendants SCDDSN and the State are dismissed. Additionally, to the extent, if any, that any of the individual SCDDSN Defendants are sued under § 1983 in their official capacities, such claims are dismissed.
c. Motion to Dismiss filed by Defendants (1) William Barfield, (2) Stanley Butkus, (3) William Danielson, (4) Robert Kerr, Kerr and Company, and (5) Lois Park Mole (ECF No. 55) (collectively, "The Barfield Defendants")
The Barfield Defendants claim that Count One (the ADA and Rehabilitation Act claims) do not apply to them, so they begin their arguments with Count Two.
In response, Plaintiffs argue: "These Acts provide a private right of action against the State, its agencies and local government entities, and their directors may be sued in their official capacities, as explained in the landmark case of Olmstead v. L.C., where the named defendant was the Commissioner for Georgia's state medicaid agency." Plaintiffs argue that Defendants have not applied the "U.S. v. Georgia framework" as discussed by the Fourth Circuit in Kobe v. Haley , and thus their claim should be denied for that reason alone. In Kobe , the Fourth Circuit explained:
To give guidance to lower courts determining whether the Eleventh Amendment bars an ADA Title II claim, the Supreme Court provided a three-part test: "[D]etermine ... on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid."
Kobe v. Haley , 666 F. App'x 281, 301 (4th Cir. 2016) (internal citations omitted).
In their Reply Brief, the Barfield Defendants argue that Plaintiffs’ response includes a lengthy discussion of the ADA, which "is mystifying, because none of the moving Defendants in ECF No. 55 (those who were not served with process until after the Second Amended Complaint was filed) were mentioned in Count 1, the ADA claim."
However, Plaintiffs’ arguments are misplaced. The Barfield Defendants are not arguing that the Eleventh Amendment bars the Count One claims against them—they are simply arguing that Count One does not apply to them because it does not mention them. Since the moving Defendants are not arguing the Eleventh Amendment bars Count One, the Court will not apply the Georgia framework or address this argument.
As initial matter this Court points out by Order dated November 28, 2018, the Court ordered Plaintiffs to file a Second Amended Complaint, and that "As to each cause of action asserted, the plaintiff shall make it plain in the first paragraph the specific defendants against whom that cause of action is asserted." (ECF No. 40 p. 3). Despite this clear instruction, it appears Plaintiffs failed to clearly name the specific defendants in the first paragraph under each cause of action.
However, upon review of the SAC, this Court points out the following paragraphs included under Count One Violation of the ADA and Rehabilitation Act:
107. Butkus , Buscemi, Maley, Lacy, Mole and Beck regularly received incident reports from PCDSNB and they were responsible for tracking and responding to reports of abuse, neglect and exploitation in DDSN programs and they failed to take action necessary to prevent harm.
108. Governors Haley and McMaster, Soura, Baker, Kerr and Danielson were on notice of systemic abuse in DDSN programs and they were consciously indifferent to their needs.
109. Thana and Owens knew of the ongoing threats and actions that resulted in PCDSNB clients, including Valentine being injured and their Fourteenth Amendment rights being violated.
SAC (emphasis added).
Thus, the Court notes that four moving Defendants—Butkus, Mole, Kerr, and Danielson—although briefly, are in fact specifically mentioned in the SAC under "Count One." Thus, Defendants’ argument that none of them are mentioned in Count One is unveiling. Thus, the issue is whether Defendant William Barfield is included in Count One. Under Count One, the SAC states:
As explained below, Defendant Kerr and Company is dismissed from this action, so Kerr and Company is not addressed in this argument.
72. In this Count, Plaintiffs allege that the Office of the Governor, DHHS, DDSN and PCDSNB have violated Plaintiffs’ rights pursuant to the ADA and the Rehabilitation Act and allegations against individual Defendants in those offices are made in their official capacities, with current officials being held liable for violations by their predecessors in office.
Additionally, in the preceding facts section, the SAC states:
14. William Barfield served as Senior Budget Analyst and later Deputy State Director of Administration in charge of finances for DDSN until 2009.
The Court finds these assertions, although not the most obvious, sufficient to allege Count One against Defendant Barfield in his official capacity only. Count One specifically states that the claims are asserted against Defendant SCDDSN and "allegations against individual Defendants in those offices are made in their official capacities, with current officials being held liable for violations by their predecessors in office." Further, the SAC asserts that Defendant Barfield served as Senior Budget Analyst and later Deputy State Director of Administration in charge of finances for DDSN until 2009.
Accordingly, Plaintiffs have asserted Count One against the moving Barfield Defendants. However, the Court finds Count One is only asserted against Defendant Barfield in his official capacity.
Next, the Barfield Defendants argue that the § 1983 does not plead personal involvement by any of these Defendants, nor does it plead an actionable violation of federal law or facts showing proximate causation. For the same reasons explained above, and after detailed consideration of the arguments set forth, the Court finds Plaintiffs has sufficiently stated a § 1983 claim at this stage.
The Barfield Defendants also argue to the extent, if any, that any of the moving Defendants are sued under § 1983 in their official capacities, such claims are clearly barred.
As an initial matter, Plaintiffs state that except for Defendant Poole, "the agency official Defendants (and former officials) have also been sued in their individual capacities." Plaintiffs argue:
Any objection by the individual capacity Defendants to Plaintiffs’ official capacity claims would place them at greater risk of having to pay any recovery awarded by the court or the jury, including legal fees and costs, from their own funds. The Court should inquire of counsel whether all Defendants named in their individual capacities have been advised of the risks of the position they are taking in this motion. Given that all individuals except Mary Poole are being sued in both their official and individual capacity, it is important for Defendants’ counsel to carefully explain to the individual Defendants the pitfalls and potential liability related to the agencies’ requests to dismiss official capacity claims, including liability not only for damages, but also for legal fees and costs awarded. It should also be noted that the Insurance Reserve Fund routinely pays for official capacity claims and defends not only official capacity Defendants, but also individual capacity state employees, in DDSN and DHHS cases.
Plaintiffs then argue that they have asserted supervisory liability. However, supervisory liability has no bearing on whether an individual can be sued for damages in their official capacity under § 1983. Plaintiffs also argue "to the extent that Plaintiff seeks prospective relief in this action, the individual Defendants in their official capacities are not excluded from liability under §§ 1983 and 1985." However, Plaintiff makes no claim for prospective relief in the SAC, and further, Valentine has passed away, so this Court cannot conceive any potential prospective relief that would be appropriate.
Thus, to the extent any of the Barfield Defendants are sued in their official capacity for damages under § 1983, which is not entirely clear from the SAC, such claims are dismissed. Under Will v. Michigan Department of State Police , a state official cannot be sued in his official capacity for damages under § 1983.
The Barfield Defendants also argue (1) the third cause of action (conspiracy under 42 U.S.C. § 1985 ) does not state a claim; (2) the fourth cause of action (civil RICO) should be dismissed because it is not pled with the specificity required by Rule 9, does not allege proximate cause, and fails to state a claim for other reasons; and (4) the third and fourth causes of action are barred by the doctrine of intracorporate immunity. For the same reasons explained above, and after detailed consideration of the arguments set forth, the Court finds Plaintiffs has sufficiently stated claims under § 1985 and RICO.
Next, the Barfield Defendants argue that the individual moving Defendants are entitled to dismissal of any federal claim based on qualified immunity. Plaintiffs respond that qualified immunity shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights. Plaintiffs set forth that the rights allegedly violated were clearly established in statutes, the constitution, and in case law. This Court agrees that dismissal based on qualified immunity is not appropriate at this time.
Lastly, Kerr and Company argues "Purported Defendant Kerr and Company was not included in the caption or in any other part of the Second Amended Complaint in a way that would indicate that that entity is a party to this action."
As to Kerr and Company, the Motion to Dismiss states:
It appears that Kerr and Company was not named as a party in the original Complaint, but was added in the Amended Complaint, for which a summons was never issued to Kerr and Company. In the Second Amended Complaint, Kerr and Company does not appear in the caption of the case, nor does it appear in the part of the Second Amended Complaint which contains a short description of each named Defendant. Second Amended Complaint, ¶¶ 4-25. Kerr and Company should therefore be dismissed from this action.
Plaintiffs’ lengthy Response Brief does not mention this argument or Kerr and Company. Accordingly, this Court finds Kerr and Company is dismissed from this action.
Accordingly, ECF No. 55 is granted in part and denied in part. Count One is asserted against Defendant Barfield in his official capacity only. To the extent any of the Barfield Defendants are sued in their official capacity for damages under § 1983, such claims are dismissed. Further, to the extent Plaintiffs intended Kerr and Company to be a named Defendant, Kerr and Company is dismissed from this action.
d. Two Motions to Dismiss filed by Defendant Mary Poole (ECF Nos. 56 & 65)
In ECF No. 56, Defendant Poole moves to dismiss the claims against her under Fed. R. Civ. P. Rule 12(b)(4) on the grounds of insufficient service of process. Although the Court agrees that Plaintiffs did not follow the FRCP, after detailed consideration of the arguments, the Court will not dismiss Defendant Poole on the basis of insufficient service of process. To cure this defect, Plaintiffs are instructed to serve Defendant Mary Poole with a correct summons within 21 day from the date of this Order.
Additionally, Defendant Poole moves to dismiss the SAC under Fed. R. Civ. P. Rule 12(b)(6). (ECF No. 65). Defendant Poole argues (1) Plaintiffs claims under the ADA and Rehabilitation Act do not apply to Defendant Poole; (2) the § 1983 claim does not apply to Defendant Poole, who is being sued in her official capacity only, and thus is not a "person" under the statute; and (3) the § 1985 and RICO claims do not mention Defendant Poole and do not purport to have been filed against her.
As an initial matter, the Court agrees that § 1983 claim does not apply to Defendant Poole, who is being sued in her official capacity only, and thus is not a "person" under the statute. The Court also agrees that the § 1985 and RICO claims do not mention Defendant Poole and do not purport to have been filed against her, and further, Plaintiffs did not respond to this argument.
As to the ADA and Rehabilitation Act claims, upon review, the SAC alleges in part:
17. Mary Poole became director of DDSN in 2018, retaining Maley as a Deputy Director.
COUNT ONE
Violations of the Americans with Disabilities Act and the Rehabilitation Act
72. In this Count, Plaintiffs allege that the Office of the Governor, DHHS, DDSN and PCDSNB have violated Plaintiffs’ rights pursuant to the ADA and the Rehabilitation Act and allegations against individual Defendants in those offices are made in their official capacities, with current officials being held liable for violations by their predecessors in office.
The Court finds the SAC sufficiently states a claim under Count One, the ADA and Rehabilitation Act, against Defendant Poole in her official capacity only.
Accordingly, ECF No. 56 is denied and ECF No. 65 is granted in part and denied in part . The ADA and Rehabilitation Act claims against Defendant Poole in her official capacity are the only claims against Defendant Poole that are allowed to proceed.
e. Motion to Dismiss filed by the Office of the Governor (ECF No. 64)
Defendant Office of the Governor first argues the ADA and Rehabilitation claims are barred for the same reasons argued in ECF No. 46-1. The Court finds that these arguments fail because as this Court explained above (1) a three-year statute of limitations applies to Plaintiffs’ ADA and Rehabilitation Act claims, and it is further tolled for five years under S.C. Code Ann. § 15-3-40, and (2) the SAC alleges a case or controversy to give rise to an ADA or Rehabilitation Act Claim.
Next, Defendant Office of the Governor argues the § 1983 claim fails because the Office of the Governor is not a "person" under the statute. The moving Defendant argues such a claim for damages may not be brought against state agencies. In response, Plaintiffs set forth an argument regarding Defendant McMaster being sued in his individual capacity and do not address Defendant Office of the Governor, which is a separate Defendant. Plaintiffs again assert the argument: "If this Court dismisses the official capacity claims, then Henry McMaster could be required to pay any damages and punitive damages awarded by a jury from his own pocket."
However, Plaintiffs do not respond to Defendant's argument that a § 1983 claim for damages may not be brought against state agencies. Thus, Plaintiffs’ claim under § 1983 as against Defendant Office of the Governor is dismissed.
Next, Defendant Office of the Governor incorporates the arguments regarding the 42 U.S.C. § 1985 and RICO claims from ECF No. 46-1.
Lastly, Defendant Office of the Governor argues that as to the RICO claim, governmental entities are not subject to civil RICO actions because they are not capable of forming a malicious intent.
Plaintiff responds that Defendant Office of the Governor is not named as a Defendant in Plaintiffs’ claims for violation of 42 U.S.C. § 1985 and the RICO claim. Thus, Defendant Office of the Governor's arguments to dismiss the § 1985 and RICO will not be addressed.
Accordingly, ECF No. 64 is granted in part and denied in part . Plaintiffs’ § 1983 claim as against Defendant Office of the Governor is dismissed.
f. Motion to Dismiss filed by Defendants Henry McMaster and Nikki Haley (ECF No. 73)
As to the ADA and Rehabilitation Act claims, Defendants Haley and McMaster state they are not sued in their individual capacities, and to the extent these causes of actions are asserted against them in their official capacities, Defendant Haley is no longer an appropriate party in that capacity as former governor and Defendant McMaster incorporates the arguments set forth in ECF No. 64.
In response, Plaintiffs state:
Count One alleges that the Office of the Governor violated Plaintiffs’ rights established under the Americans with Disabilities Act and the Rehabilitation Act. It is well established in the Fourth Circuit that the Office of the Governor may be sued for monetary damages for violations of the ADA and the Rehabilitation Act. Kobe v. Haley, 666 Fed. Appx. 281, 2016 U.S. App. LEXIS 22283 (4th Cir. S.C., Dec. 15, 2016), Kobe v. McMaster , 2018 U.S. Dist. LEXIS 55500 (S.C.D.C. 2018). Plaintiffs have not sued Henry McMaster or Nimrata "Nikki" Haley individually in Count One.
Plaintiffs response concedes that Defendants Haley and McMaster are not sued individually under Count One. Thus, since Defendants Haley and McMaster are not sued individually under Count One (the ADA and Rehabilitation claims), the Court will not address this argument.
Next, Defendants Haley and McMaster argue that the § 1983 claim does not plead personal involvement nor does it plead an actionable violation of federal law or facts showing proximate cause. The moving Defendants argue the § 1983 claim does not make specific allegations against Defendants Haley and McMaster. Defendants Haley and McMaster also assert that if they are sued in their official capacity under § 1983, these claims should be dismissed because they are not "persons" under the statute.
The Court agrees that Defendants Haley and McMaster cannot be sued in their official capacity for damages under § 1983 and thus these claims are dismissed to the extent they exist. After detailed consideration of the arguments, the Court agrees with Plaintiffs that they stated a claim that Defendants Haley and McMaster may be held liable under supervisory liability as set out in Shaw . Thus, Plaintiff has sufficiently stated a claim under § 1983 against Defendants Haley and McMaster in their individual capacities.
As to the claim for violation of 42 U.S.C. § 1985 and the RICO claim, Defendants Haley and McMaster adopt and incorporate by reference the discussion of those claims set forth in ECF No. 46-1 at pp. 14-19, as being equally applicable to them.
As to the § 1985 conspiracy claims, Plaintiffs clarify that only Defendant Haley and not McMaster was named in that count. Thus, Defendant McMaster's request to dismiss the § 1985 conspiracy claims against him will not be addressed.
Plaintiffs clarify that as to the RICO claims, Defendants Haley and McMaster are only sued in their individual capacities. As explained above, the Court finds Plaintiffs have stated a sufficient claim under RICO at this stage.
Lastly, Defendants adopt and incorporate by reference the discussion of qualified immunity set forth in ECF No. 46-1 at p. 19 as being equally applicable to them. As explained above, this Court finds that dismissal based on qualified immunity is not appropriate at this stage.
Accordingly, ECF No. 73 is granted in part and denied in part . To the extent the § 1983 is asserted against Defendants Haley and McMaster in their official capacities, these claims are dismissed.
VI. Conclusion
For the foregoing reasons,
ECF No. 45 is granted in part and denied in part. The ADA and § 504 claims against Defendant Baker in his official capacity are dismissed as duplicative. Additionally, the § 1983 claim against Defendant Baker in his official capacity is dismissed.
ECF No. 46 is granted in part and denied in part. The § 1983, § 1985, and RICO causes of action against Defendants SCDDSN and the State are dismissed. Additionally, to the extent, if any, that any of the individual SCDDSN Defendants are sued under § 1983 in their official capacities, such claims are dismissed.
ECF No. 55 is granted in part and denied in part. Count One is asserted against Defendant Barfield in his official capacity only. To the extent any of the Barfield Defendants are sued in their official capacity for damages under § 1983, such claims are dismissed. Further, to the extent Plaintiffs intended Kerr and Company to be a named Defendant, Kerr and Company is dismissed from this action.
ECF No. 56 is denied and ECF No. 65 is granted in part and denied in part . The ADA and Rehabilitation Act claims against Defendant Poole in her official capacity are the only claims against Defendant Poole that are allowed to proceed. Plaintiffs are instructed to serve Defendant Mary Poole with a correct summons within 21 days from the date of this Order.
ECF No. 64 is granted in part and denied in part . Plaintiffs’ § 1983 claim as against Defendant Office of the Governor is dismissed.
ECF No. 73 is granted in part and denied in part . To the extent the § 1983 is asserted against Defendants Haley and McMaster in their official capacities, these claims are dismissed.
To the extent the Court has failed to address any of Defendants arguments in the motions to dismiss, Defendants’ claims are denied for failure to meet the applicable standard under Fed. R. Civ. P. Rule 12(b).
IT IS SO ORDERED.