Opinion
C. A. 3:23-659-MGL-SVH
12-06-2023
Mark Kirby, individually and on behalf of the Estate of Jane W. Kirby, Plaintiff, v. South Carolina State Accident Fund and Amy Cofield, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Mark Kirby (“Plaintiff”) brings this pro se action on behalf of himself and the estate of his wife, Jane W. Kirby (“Mrs. Kirby”). He sues the South Carolina State Accident Fund (“SCSAF”) and the former head of the SCSAF Amy Cofield (“Cofield”) (collectively “Defendants”), in their official capacities, pursuant to 42 U.S.C. § 1983, alleging they violated his and Mrs. Kirby's privacy and other constitutional rights during the adjudication of a workers' compensation claim involving the SCSAF.
Plaintiff additionally brought claims against the State of South Carolina and Governor Henry D. McMaster, but those defendants have been dismissed. [See ECF Nos. 37, 41].
This matter comes before the court on Defendants' motion to dismiss and/or for summary judgment pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 56. [ECF No. 62]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the relevant procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 63]. Defendants' motion having been fully briefed [ECF Nos. 68, 71], the matter is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Because the motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the court grant Defendants' motion.
I. Factual and Procedural Background
As previously recounted by the court [see ECF No. 37], Plaintiff filed a workers' compensation claim concerning a work-related injury Mrs. Kirby sustained prior to her death (“underlying case”). [ECF No. 1 at 4]. He maintains that between June 17, 2019, and May 11, 2020, during the discovery process related to the adjudication of the underlying case, Defendants obtained his and Mrs. Kirby's confidential health, medical, financial, income, public benefits, and military service records for the purposes of stopping the workers' compensation case from going to a hearing and preventing him from receiving benefits. Id. He claims Defendants committed these violations despite an Administrative Law Judge's (“ALJ”) order prohibiting such activity and state and federal laws that proscribed their actions. Id. He asserts Defendants concealed the identity of a key witness and used the court system to deny him the ability to represent himself pro se in the underlying case. Id. Plaintiff alleges Defendants engaged in repeated and constant abusive actions and violations of his rights that caused him mental and physical health issues and led him to retract claims he had asserted against them. Id. He claims he experienced emotional harm, stress, high blood pressure, hives, rashes, insomnia, and mental health problems. Id. at 5.
The complaint lacks details as to Mrs. Kirby's employment, injury, and the circumstances surrounding her death. [See generally ECF No. 1]. However, Plaintiff had included in the record documents that reflect he “allege[d] an injury to Jane Kirby's breast cause the aggravation of a preexisting condition and the death of Jane W. Kirby on November 6, 2018.” [ECF No. 31-1 at 6, 11].
Plaintiff has included in the record an order from South Carolina Workers' Compensation Commissioner T. Scott Beck citing S.C. Code Ann. § 40-5-310 and providing that Plaintiff may “represent himself as a dependent,” but cannot “appear on behalf of Jane Kirby regarding the issues of compensability and payment of medical and indemnity benefits.” [ECF No. 31-1 at 6-7].
Plaintiff generally alleges Defendants violated his and Mrs. Kirby's constitutional, civil, and privacy rights and laws and regulations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Id. at 3. He seeks the maximum allowable damages and a written apology from Cofield. Id. at 5.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 322-23. If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
C. Analysis
1. Eleventh Amendment Immunity
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). “Like the state itself, state officers acting in their official capacity are entitled to Eleventh Amendment protection, because ‘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,' and ‘[a]s such, it is no different from a suit against the State itself.'” Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citation omitted)).
Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state and its agencies may not be sued in federal or state court. Will, 491 U.S. at 66. Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e). Therefore, the Eleventh Amendment bars Plaintiff's action against Defendants in their official capacities.
In response to Defendants' argument that Plaintiff's claims are barred by Eleventh Amendment immunity, Plaintiff argues that “[t]he South Carolina Supreme Court abolished sovereign immunity in the State of South Carolina,” citing McCall v. Batson, 329 S.E.2d 741, 742-43 (S.C. 1985). [ECF No. 68-1 at 11-12].
While he correctly recognized that the South Carolina Supreme Court, by its decision in McCall, abolished sovereign immunity in South Carolina, Plaintiff fails to recognize that the South Carolina General Assembly, by enacting the South Carolina Tort Claims Act (“SCTCA”), SC Code Ann. §§ 15-78-10, et seq., superseded McCall. The South Carolina Supreme Court recognized this in Repko v. County of Georgetown, 818 S.E.2d 743, 747 (S.C. 2018), as follows:
In response to our abolition of the doctrine of sovereign immunity in [McCall], the [South Carolina] General Assembly enacted the [South Carolina Tort Claims Act (“SCTCA”)]. See S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2017). Section 15-78-40 provides that a political subdivision such as the County is “liable for [its] torts in the same manner and to the same extent as a
private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages” found in the TCA. (emphasis added). Subsection 15-78-20(a) provides in part, “The General Assembly recognizes the potential problems and hardships each governmental entity may face being subjected to unlimited and unqualified liability for its actions.” Subsection 15-78-20(f) provides, “The provisions of [the TCA] establishing limitations on and exemptions to the liability of the [governmental entity or political subdivision], while acting within the scope of official duty, must be liberally construed in favor of limiting the liability of the [governmental entity or political subdivision].” Section 1578-60 lists forty exceptions to the waiver of sovereign immunity.
Under the SCTCA, the State of South Carolina did not waive its immunity from suit in federal court. See S.C. Code Ann. § 15-78-20(e) (“Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States or as consent to be sued in any state court beyond the boundaries of the State of South Carolina.”).
Plaintiff cites to no case law, nor is the court aware of any, indicating that Defendants are not entitled to Eleventh Amendment immunity in this context. Instead, this court has held otherwise. See, e.g., Walling v. State Accident Fund, C/A No. 2:15-4448-DCN-BM, 2016 WL 7626172, at *5 (D.S.C. Feb. 8, 2016) (“Additionally, the State Accident Fund and the state agency employees (the State Agency Fund adjusters and the Commissioners) in their official capacities are entitled to Eleventh Amendment immunity as to any claims against them for monetary damages.”), report and recommendation adopted, C/A No. 2:15-4448 DCN, 2016 WL 7508234 (D.S.C. Feb. 29, 2016); Lynch v. State Accident Fund, C/A No. 6:15-4147-TMC-KFM, 2015 WL 7352017, at *1 (D.S.C. Oct. 20, 2015) (“The South Carolina State Accident Fund, the South Carolina Department of Corrections, and the State of South Carolina are immune from suit under the Eleventh Amendment, which divests this court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts, such as a state agency or department.”), report and recommendation adopted, C/A No. 6:15-4147-TMC, 2015 WL 7274164 (D.S.C. Nov. 16, 2015).
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss for claims asserted against them in their official capacities for damages.
2. Section 1983 Claim
The undersigned further recommends Defendants be dismissed because claims against them are not supported under 42 U.S.C. § 1983. To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by “the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Only “persons” may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a “person.” Because the State is not a “person,” it is not a proper defendant in a § 1983 claim.
Additionally, a plaintiff must allege a causal connection or affirmative link between the conduct of which he complains and the official sued. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the constitution); Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (holding a § 1983 plaintiff must show that he suffered a specific injury as a result of specific conduct of a defendant, and an affirmative link between the injury and that conduct). The doctrine of supervisory liability is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom that results in an illegal action. See Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1142-43 (4th Cir. 1982).
Plaintiff argues repeatedly that he has asserted a viable claim against Defendants, for example, as follows:
There is no such question in [this] case as [both SCSAF and Cofield] were DIRECTLY involved and it can be proved beyond any doubt, that they both caused the [deliberate] and intentional violations of Constitutional rights and laws through a [SCSAF] policy or custom enforced by Cofield, the legal staff, and a large number of employees of the [SCSAF].[ECF No. 68 at 2, see also id. at 16 (“[Plaintiff] can prove beyond any reasonable doubt, with documented evidence, that there was a policy or custom by the [SCSAF], enforced by [Cofield], followed by [SCSAF] attorneys and others, and that enforcement of that policy or custom by [them] violated Federally-protected rights of the [Plaintiff] as well as Federal Laws.”), id. at 5, 10, 14, 15, 17, ECF No. 68-1 at 9-10].
Plaintiff appears to challenge two primary “policies or customs.” First, he challenges alleged discovery abuses including the demand of “Any and All medical records” via subpoenas and the demand of related materials during his deposition, arguing his rights were violated when SCSAF's counsel issued overly-broad subpoenas and asked certain questions during his deposition in the underlying case. [See, e.g., ECF No. 68 at 16 (“To any reasonable person, a REQUEST or SUBPOENA for protected medical records with an ‘any and all demand' is a clear violation of 14th, 4th, 5th Amendments, HIPAA Laws, and other multiple other Federal privacy laws, and is ILLEGAL.”), see also ECF No. 68-1 at 9-10].
Plaintiff has asserted to the court that “Judge Taylor” limited the scope of the relevant subpoenas and reviewed certain produced documents, turning over to opposing counsel only a limited number of relevant documents. [See, e.g., ECF No. 31-1 at 30-31, ECF No. 68-1 at 6-7].
Second, Plaintiff challenges the following order issued in the underlying case in response to SCSAF's counsel's motion, seeking the same [see ECF No. 68-2 at 22-24]:
IT IS HEREBY ORDERED that Mark Kirby shall be able to represent himself as a dependent in this case, but it is not proper for Mark Kirby to appear on behalf of Jane Kirby regarding the issues of compensability and payment of medical and indemnity benefits.[ECF No. 68-2 at 4].
Plaintiff argues that SCSAF should be held liable for the actions of its attorney in the underlying case. However, Plaintiff has provided no evidence or argument that the attorney's actions related to an official policy or custom, beyond Plaintiff's own supposition.
Plaintiff has repeatedly asserted that he “has not requested that the Federal Court reverse any State decision or void any state ruling” and that the relief he requests “would NOT reverse any State Decision or void any State ruling.” [See, e.g., ECF No. 68 at 21].
As explained by the Fourth Circuit as to Monell liability, “[t]he policy or custom may be expressed in one of several forms:
(1) [T]hrough an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifest[s] deliberate indifference to the rights of citizens; or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law.Howard v. City of Durham, 68 F.4th 934, 952 (4th Cir. 2023) (citing Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 533 (4th Cir. 2022)).
Here, Plaintiff has not argued nor produced evidence of a policy statement or something similar or that a municipal official with final policymaking authority has acted. Likewise, Plaintiff has offered no argument or evidence of a relevant omission, for example that SCSAF failed to properly train the attorneys. See, e.g., Owens v. Baltimore City State's Att'ys Off., 767 F.3d 379, 402 (4th Cir. 2014) (“Prevailing under such a theory is no easy task. A plaintiff must point to a persistent and widespread practice[ ] of municipal officials, the duration and frequency of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference.”) (citation omitted)).
Finally, Plaintiff has not asserted any widespread custom or practice, beyond arguing that most of the subpoenas at issue in his underlying case “request[ed] all confidential information with no time limit or relevance” and that “many of the 85 (+-) employees likely followed the Agency policy or custom to handle claims in a way that violated injured workers' rights and violations Laws.” [ECF No. 68 at 17]. Plaintiff's allegations are insufficient to maintain a Monell claim in this context. See id. at 403 (“Sporadic or isolated violations of rights will not give rise to Monell liability; only widespread or flagrant violations will.”) (citation omitted)).
For these additional reasons, the undersigned recommends the district judge grant Defendants' motion, to dismiss Plaintiff's claims against them.
Given the recommendation above, it is unnecessary for the court to address Defendants' additional arguments for dismissal and for summary judgment, including that (1) Plaintiff has failed to state a viable claim for relief,; (2) Plaintiff failed to identify the specific constitutional rights they allegedly violated; (3) the record negates the factual allegations presented by Plaintiff in his complaint; and (4) the Rooker-Feldman doctrine bars the entirety of Plaintiff's action.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion to dismiss [ECF No. 62].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).