Kobe et al v. Mann et al
Filing
135
ORDER granting 75 Motion to Dismiss for Lack of Jurisdiction; granting 75 Motion to Dismiss for Failure to State a Claim; granting 99 Motion to Dismiss for Lack of Jurisdiction; granting 99 Motion to Dismiss for Fa ilure to State a Claim; granting 123 Motion to Dismiss for Failure to State a Claim; granting 125 Motion to Dismiss for Failure to State a Claim. Defendants Haley, Loftis, White, Cooper, and Chellis are dismissed from this action. Signed by Honorable Timothy M Cain on 8/10/2012.(gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kobe, Mark, and John,
Plaintiffs,
v.
Nikki Haley, in her capacity as
Governor and Chairman of the
South Carolina Budget and Control
Board; Daniel Cooper, Converse
Chellis and Mark Sanford, in their
capacities as former members of
the South Carolina Budget and
Control Board; Hugh Leatherman
and Richard Eckstrom, in their
capacities as members of the South
Carolina Budget and Control Board;
Curtis Loftis and Brian White, as
members of the South Carolina
Budget and Control Board, Anthony
Keck, in his capacity as the Director
of the South Carolina Department
of Health and Human Services,
Emma Forkner, in her capacity as
the former Director of the South
Carolina Department of Health
and Human Services, Beverly
Buscemi in her capacity as Director
of the South Carolina Department
of Disabilities and Special Needs,
Eugene A. Laurent, former Interim
Director of the South Carolina
Department of Disabilities and
Special Needs; Stanley Butkus,
former Director of the South Carolina
Department of Disabilities and
Special Needs; Richard Huntress,
in his capacity as Commissioner
of the South Carolina Department
of Disabilities and Special Needs;
Kathi Lacy, Thomas P. Waring and
Jacob Chorey, in their capacities
as employees of the South Carolina
Department of Disabilities and
Special Needs, Mary Leitner, in
her capacity as the Director of the
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C/A No. 3:11–1146-TMC
ORDER
Richland Lexington Disabilities and
Special Needs Board; the Babcock
Center, Judy Johnson, in her capacity
as the Director of the Babcock Center
and other Unnamed Actors Associated
with the Babcock
Center,
Defendants.
________________________________
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In their Amended Complaint, Plaintiffs seek actual and punitive damages, and
declaratory and injunctive relief for violations of Title II of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of 1973 (“Section
504"); the Medicaid Act;1 and 42 U.S.C. §§ 1983 and 1985. (Dkt. # 65 - Am. Compl. at
3).2 This matter is before the court on four separate motions to dismiss filed by
Defendants Nikki Haley (Dkt. # 73), Curtis Loftis and Brian White (Dkt. # 99), Daniel
Cooper (Dkt. # 123), and Converse Chellis (Dkt. # 125). Plaintiffs have filed responses
opposing the motions and Defendants have filed replies. These motions are now ripe
for ruling.
I. Background/Procedural History
Plaintiffs in this action are three individuals who have varying degrees of mental
and/or physical disabilities.3 Because of their disabilities, Plaintiffs receive Adult Day
1
Title XIX of the Social Security Act, 42 U.S.C. §§ 1396–1396v, is known as the
Medicaid Act.
2
Plaintiffs numbered the paragraphs 1-45 on the first seven pages of the
Amended Complaint and then on page eight started back at one. Also, in their prayer for
relief, the paragraph numbers start over beginning with one on page seventy of the
Amended Complaint. Therefore, to avoid confusion, the court has referred to the pages
of the Amended Complaint, rather than the numbered paragraphs.
3
Plaintiffs state they are bringing this action as a class action pursuant to Rule 23,
Fed. R. Civ. P. (Am. Compl. 2, 8-10). However, this action has not been declared a
class action and, at this time, there has been no motion filed seeking to certify this
action as such.
2
Health Care Services (“ADHC”) and other home and community based services. (Am.
Compl. at 2).
These services are provided to Plaintiffs through a Medicaid waiver
program for persons with disabilities, the Mental Retardation/Related Disabilities
(“MR/RD waiver”). Id.4 The South Carolina Department of Health and Human Services
(“SCDHHS”) contracts with the South Carolina Department of Disabilities and Special
Needs (“SCDDSN”) to operate the MR/RD waiver program and SCDSSN contracts with
local Disabilities and Special Needs (“DSN”) Boards.5 The local DSN Boards in turn
contract with private entities to actually provide the ADHC services. The majority of
SCDDSN’s funding comes through SCDHHS from Medicaid.
Plaintiffs allege that SCDDSN, in violation of state and federal law, notified
Plaintiffs of its termination or intent to terminate their ADHC services in an effort to force
Plaintiffs to attend Work Activity Centers (“WAC”) operated by local DSN Boards for the
financial gain of SCDDSN and the local DSN Boards. Specifically, Plaintiffs allege that
in 2009 after announcing reductions in MR/RD waiver services due to a budget deficit at
SCDDSN, the South Carolina Budget and Control Board (“SCBCB”) voted in September
2009 to transfer $2.8 million from a $7 million “reserve” account to “three agencies it
4
The court notes that 2011 South Carolina Laws Act No. 47, § 13 (eff. June 7,
2011), amends various South Carolina code sections such that the terms “intellectual
disability” and “person with intellectual disability” are to replace and have the same
meanings as the former terms “mental retardation”’ and “mentally retarded.” However,
federal laws and regulations still use the nomenclature “mental retardation.” The court
will use the MR/RD terminology which was in effect at the time this case was filed and is
used by the parties in their pleadings and memoranda.
5
The SCDDSN provides services to individuals with head and spinal cord injuries
and those with developmental disabilities, such as mental retardation and autism. S.C.
Code Ann. § 44-21-10. SCDDSN is led by a director appointed by the South Carolina
Commission on Disabilities and Special Needs (“Commission”). S.C. Code Ann. §§
44-20-220 and 44-20-230. The Commission is an advisory board consisting of seven
members appointed by the Governor. S.C. Code Ann. § 44-20-225.
3
treated as local DSN Boards” to purchase WACs in exchange for Defendant Eugene
Laurent’s agreement to transfer $3.2 from this fund for the SCBCB to spend on a
statewide computer project. (Am. Compl. at 23).6 Plaintiffs also allege the SCBCB
voted to spend $7.8 million from the “excess funds” held by SCDSSN to purchase real
estate knowing that on January 1, 2010, services would be reduced due to “false claims
of ‘budget deficits.’” (Am. Compl. at 24).
In addition to actual and punitive damages, Plaintiffs seek declaratory and
injunctive relief finding Defendants have violated the ADA, Section 504 of the
Rehabilitation Act, and the Medicaid Act, and prohibiting the Defendants from reducing
ADHC services. (Am. Compl. at 70, 71). Further, Plaintiffs seek an order “requiring
Defendants to provide such additional services as shall be medically necessary, as shall
be determined by their treating physicians, so as to allow Plaintiff and Class Members to
live in the most integrated settings possible in order to prevent regression and to allow
them to function with the most independence possible.” Id. Finally, Plaintiffs seek an
“order requiring Defendants to provide Medicaid waiver services as shall be determined
by the treating physicians to be necessary absent review . . . “ as long as the cost of
theses services is less than cost of the ICF/MR services. (Am. Compl. at 71).
II. Standard of Review7
A motion made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
6
7
At that time, Laurent was the Interim Director of the SCDDSN.
Defendants have filed these motions pursuant to Rule 12(1) and 12(b)(6), Fed.
R. Civ. P. The Fourth Circuit has not resolved which of these rules applies to a motion
to dismiss based on Eleventh Amendment immunity. See Andrews v. Daw, 201 F.3d
521, 525 n. 2 (4th Cir. 2000) (holding cases are unclear as to whether a dismissal on
Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under
Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1)).
However, the court would reach the same conclusion under either rule.
4
challenges the court's jurisdiction over the subject matter of the plaintiff's complaint.
When the court's subject matter jurisdiction is challenged, the plaintiff bears the burden
of proof. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir.1991). When ruling on a 12(b)(1) motion, the Court considers the
pleadings, and it may also consider evidence outside of the pleadings without
necessarily converting the motion to one for summary judgment. Evans v. B.F. Perkins
Co., a Div. of Standex Intern. Corp., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond,
Fredericksburg & Potomac R.R. Co., 945 F.2d at 768). The moving party will prevail as
a matter of law if material jurisdictional issues are not in dispute. Id.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure is to test the sufficiency of the Plaintiff's Complaint. Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In evaluating a motion to dismiss
under Rule 12(b) (6), the “court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). The
court, however, need not accept as true “legal conclusions, elements of a cause of
action, and bare assertions devoid of further factual enhancement.” Id. The complaint
must contain sufficient well-pled facts to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). There must be “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662 (2009) (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Twombly, 550 U.S. at 556.
III. Discussion
In their Amended Complaint, Plaintiffs allege eight causes of action: 1) Violations
5
of the ADA against Defendants who were members of the SCBCB in 2009 (Am. Compl.
45-50); 2) Violations of Section 504 against individual Defendants Buscemi, Lacy,
Waring, Huntress, Chorey, and Johnson (Am. Compl. 50-53); 3) Violations of 42 U.S.C.
§ 1983 against individual Defendants Haley, Sanford, Cooper, Eckstrom, Chellis,
Leatherman, Forkner, Keck, Butkus, Laurent, Buscemi, Lacy, Waring, Chorney,
Huntress, Johnson, and Leitner (Am. Compl. 53-56); 4) Violations of 42 U.S.C. §§1983
and 1988 against all Defendants (Am. Compl. 56-62);8 5) Violations of 42 U.S.C. § 1983
(Conspiracy) against Defendants Buscemi, Forkner, Lacy, Waring, Chorey, and
Johnson (Am. Compl. 62-64); 6) Violation of the Supremacy Clause against all
Defendants (Am. Compl. 64); 7) Violation of RICO against Defendants Haley, Sanford,
Butkus, Laurent, Forkner, Lacy, Waring, Chorey, and Johnson (Am. Compl. 64-69); and
8) Neglect, Deliberate Indifference, Assault and Battery, and Intentional Infliction of
Emotional Distress against Defendants Babcock Center, Johnson, and the agents and
employees of the Babcock Center in regard to the care of only Plaintiff Kobe (Am.
Compl. 69-70).
Reviewing the allegations of the Amended Complaint, only Defendants Curtis
Loftis and Brian White are being sued solely in their official capacities. (Am. Compl. at
5). The remaining individual Defendants, Mark Sanford, Hugh Leatherman, Daniel
Cooper, Richard Eckstrom, Converse Chellis, Anthony Keck, Emma Forkner, Beverly
Buscemi, Stanley Butkus, Eugene Laurent, Richard Huntress, Kathi Lacy, Thomas P.
Waring, Judy Johnson, Jacob Chorey, and Mary Leitner are specifically being sued in
8
Under this cause of action, Plaintiffs also specifically allege Defendants Butkus,
Forkner, Laurent, Buscemi, Lacy, Waring, Chorey, and Johnson “have acted with an evil
motive or intent to deny services to Plaintiffs.” (Am. Compl. at 61).
6
both their individual and official capacities. (Am. Compl. 5-8).9
While there are no
specific allegations in the Amended Complaint as to the capacity in which Defendant
Haley is being sued, Plaintiffs state in their memorandum that Governor Haley is being
sued only in her official capacity. (Dkt. # 81 - Pls.’ Mem. Opp. Mot. to Dismiss at 4).
The court will address each motion in turn.
1. Defendant Haley’s Motion to Dismiss10
As noted above, Defendant Haley is being sued solely in her official capacity as
Governor of South Carolina and Chairman of the SCBCB. Governor Haley has filed a
motion to dismiss on the ground that Plaintiffs’ claims against her are barred by the
Eleventh Amendment. Plaintiffs contend that Governor Haley is not entitled to Eleventh
Amendment immunity because she has supervisory responsibility over DHHS and
DDSN and she is responsible for the acts of former Governor Mark Sanford. (Dkt. # 81Pls.’ Mem. Opp. Mot. to Dismiss at 7). For the reasons discussed below, the court
grants Governor Haley’s Motion to Dismiss.
The Eleventh Amendment bars suits against a State in federal court.11
9
The court notes that the caption of the Amended Complaint is somewhat
misleading as it lists most of the Defendants as being sued in their capacities as
members of the SCBCB. It does not state any of the Defendants are being sued in their
individual capacities.
10
The court notes Plaintiffs argue that the court should not dismiss Plaintiffs’
claims pending a decision by the Supreme Court in Douglas v. Independent Living
Centers,
U.S.
, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012). (Dkt. # 81 - Pls.’ Mem.
Opp. Mot. to Dismiss at 19-20). That case was decided on February 22, 2012, and thus
the request to postpone a resolution of the instant motion is now moot. Moreover,
Douglas is wholly inapplicable. In Douglas the Supreme Court remanded the action to
the Ninth Circuit to address whether a plaintiff may bring a Supremacy Clause challenge
where the allegedly non-compliant state law has been approved by CMS. The action
before this Court does not challenge a state statute, let alone one that has been
approved by CMS.
11
The Eleventh Amendment provides:
7
Additionally, the Eleventh Amendment “does not permit judgments against state officers
declaring that they violated federal law in the past.” Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
However, Eleventh
Amendment immunity is not absolute. See Port Authority Trans–Hudson Corp. v.
Feeney, 495 U.S. 299, 304 (1990).
In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court recognized a narrow
exception for claims brought against individual state officers acting in their official
capacities if the complaint alleges an ongoing violation of federal law and the plaintiff
seeks prospective relief. Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635,
645 (2002). The Ex parte Young exception creates a fiction by allowing a person to
enjoin future state action by suing a state official for prospective injunctive relief rather
than the state itself. The Ex parte Young exception “applies only when there is an
ongoing violation of federal law that can be cured by prospective relief. It does not
apply when the alleged violation of federal law occurred entirely in the past.” Debauche
v. Trani, 191 F.3d 499, 505 (4th Cir. 1999).
Ex parte Young requires a “special relation” between the
state officer sued and the challenged statute to avoid the
Eleventh Amendment's bar. Ex parte Young, 209 U.S. at
157, 28 S.Ct. 441. “General authority to enforce the laws of
the state is not sufficient to make government officials the
proper parties to litigation challenging the law.” Children's
Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412,
1416 (6th Cir.1996) (internal quotation marks omitted). Thus,
“[t]he mere fact that a governor is under a general duty to
enforce state laws does not make him a proper defendant in
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
U.S. CONST . amend. XI.
8
every action attacking the constitutionality of a state statute.”
Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979).
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001). As long as
the state official “has some connection with the enforcement of the act,” that official is
an “appropriate defendant.” Shell Oil v. Noel, 608 F.2d 208, 211 (1st Cir.1979). “It is a
question of federal jurisdictional law whether the connection is sufficiently intimate to
meet the requirements of Ex parte Young.” Id.
Here, Governor Haley contends that the Ex parte Young exception does not
apply for two reasons: (1) she has no connection with the challenged acts; and (2)
Plaintiffs are seeking retrospective, not prospective, relief in their claims against her.
Plaintiffs argue Governor Haley is liable due to her supervisory responsibility over the
SCDHHS and SCDDSN and her enforcement authority as governor to appoint and
remove the Director of DHHS and members of the SCDDSN Commission. Further,
Plaintiffs contend that Governor Haley’s name is on the SCDHHS letterhead, the
SCDHSS is part of her cabinet, Governor Haley personally sought out and hired the
SCDHHS’s director, and Governor Haley has stated in the media that she is working
closely with the director to provide as much healthcare for South Carolinians for as little
as possible. (Id. at 12-13). Finally, Plaintiffs argue that Governor Haley joined thirty-one
other governors in writing to the President for Medicaid reform which Plaintiffs contend
calls for elimination of “‘excessive constraints’ which Congress enacted to protect
Plaintiffs and providers in exchange for federal funding.” (Dkt. # 81 - Pls.’ Mem. at 13
and Ex. 16 and 17).12
12
Plaintiffs also cite to numerous other cases in support of their argument that
Haley is not entitled to Eleventh Amendment immunity, including Kimble v. Solomon,
599 F.2d 599 (4th Cir. 1979), and Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990).
However, these cases are inapplicable here. In Kimble, in the context of Eleventh
Amendment immunity, the court addressed whether the relief being sought was
9
While Defendant Haley as the Governor of South Carolina has the power to
appoint and general supervisory authority, neither appointment power nor general
supervisory power over persons responsible for enforcing a challenged provision will
subject an official to suit.13 Waste Mgmt. Holdings, 252 F.3d at 33 (holding an official's
general authority to enforce the laws of a state is not sufficient to make a government
official a proper party in an action challenging a law). See also Kuck v. Danaher, 822 F.
Sipp. 2d 109 (D. Conn. 2011)(citing Kelly v. Burks, 414 F.Supp.2d 681, 686 (E.D. Ky.
2006); D.G. ex rel. Stricklin v. Henry, 591 F. Supp. 2d 1186, 1189 (N.D. Okla. 2008)
(holding despite governor’s power to make appointments to the entity that acted
unconstitutionally, the governor is not responsible for actually administering the foster
case system); LensCrafters, Inc. v. Sundquist, 184 F. Supp. 2d 753, 757-59 (M.D.Tenn.
2002) (finding Eleventh Amendment bars suit against governor when only nexus
between governor and challenged action by board was governor’s power to make
appointments to board); Sweat v. Hull, 200 F. Supp. 2d 1162, 1175-76 (D. Ariz. 2001)
prospective or retrospective. In Wilder, the Supreme Court held only that state officials
could be sued under § 1983 for violations of the Medicaid Act. See Fla. Ass’n of
Rehabilitation Facilities, Inc. v. State of Fla. Dept. of Health & Rehabilitative Servcs.,
225 F.3d 1208, 1226 n. 13 (11th Cir. 2000) (holding the Court in Wilder did not address
any Eleventh Amendment issue and only addressed the question of whether the Boren
Amendment is enforceable in an action by health care providers under § 1983).
Governor Haley is not disputing that there exists a private cause of action under § 1983
against state officials for violations of the Medicaid Act nor is she arguing that a
governor cannot be sued for such violations for prospective relief. Rather, she contends
that she does not have the requisite connections to the alleged actions in this case to
apply the Ex parte Young exception to Eleventh Amendment immunity. (Def.’s Reply
Mem. 4).
13
Plaintiffs cite to several cases discussing when supervisory liability may be
imposed for constitutional injuries: Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), and
Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984). (Pls.’ Mem. at 8). These cases and
others discussing supervisory liability in the context of a § 1983 action are simply not
applicable to the specific issue raised in this motion to dismiss based upon Eleventh
Amendment immunity.
10
(dismissing claim against Governor who signed allegedly unconstitutional bill into law
and appointed the cabinet official responsible for enforcing that law).
Furthermore, the remaining factors which Plaintiffs contend provide a nexus are
also insufficient.
A governor’s name on the letterhead of an agency is really nothing
more than a formality or acknowledgment of the structure of the state’s government.
Furthermore, Governor Haley’s general policies or opinions on budgetary or political
matters also do not provide a sufficient nexus. Waste Mgmt. Holdings, 252 F.3d at 331
(“The fact that [governor] has publicly endorsed and defended the challenged statutes
does not alter our analysis.”).
Plaintiffs also contend Governor Haley is responsible for “the personal acts of
[former] Governor Sanford” in an alleged conspiracy to terminate Plaintiffs’ ADHC in
order to benefit a Lexington County corporation. (Pls.’ Mem. Opp. Mot to Dismiss at 3,
4). Plaintiffs allege that former Governor Sanford as chairman of the SCBCB was
involved in a scheme to divert funds from an excess fund account to purchase three
workshops which caused the State to lose more that $10 million in matching Medicaid
funds. (Dkt. # 81- Pls.’ Mem. Opp. Motion to Dismiss at 7).14
The United States Supreme Court has established that the Ex parte Young
exception only applies to prospective injunctive relief. Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). Retrospective relief, on the
other hand, is barred by the Eleventh Amendment. Green v. Mansour, 474 U.S. 64, 68
(1985).
Likewise, a declaratory judgment against state officials declaring that they
14
The Ex Parte Young exception does not apply to actions against state officials
seeking to compel compliance with state law. Antrican v. Odom, 290 F.3d 178 (4th Cir.
002). Accordingly, if Plaintiffs are seeking a declaration that Defendants violated any
state law, they are unable to do so.
11
violated federal law in the past constitutes retrospective relief, and is barred by the
Eleventh Amendment. Id. at 67. Governor Haley is entitled to Eleventh Amendment
immunity for Plaintiffs’ claims based upon former Governor’s Sanford’s prior acts for
which Plaintiffs are seeking only retrospective relief.
Moreover, as a practical matter, to impose a prospective injunction on Governor
Haley to cure any alleged Medicaid violations would have no effect. The hearing and
notice requirements set forth in 42 C.F.R. § 431 are placed upon the state Medicaid
agency and not the governor. Each state’s Medicaid plan must specify a single state
agency designated to administer the Medicaid plan, and this agency cannot delegate its
authority to exercise discretion in the administration or supervision of the plan. 42
C.F.R. § 431.10(a) and (e). In South Carolina, the South Carolina Department of Health
and Human Services (“SCDHHS”) is the state agency designated to administer and
supervise the Medicaid plan. S.C. Code Ann. § 44-6-30(1). Further, while 42 C.F.R. §
430.12 provides the governor is to review and comment on a state’s Medicaid plan, this
does not create any enforcement rights in the governor and as Plaintiffs allege in their
Amended Complaint, “SCDDSN is responsible, under contract with SCDHHS, for the
day-to-day operations of the Medicaid waiver programs in the State . . . “ (Am. Compl. at
5-6). Accordingly, Defendant Haley’s Motion to Dismiss is granted and she is dismissed
from this action.15
2. Defendants Loftis and White’s Motion to Dismiss
Similarly, to Defendant Haley, in their Motion to Dismiss, Defendants Loftis and
White contend, inter alia, that as members of the SCBCB, they have no special relation
15
Because the court concludes that Governor Haley is entitled to Eleventh
Amendment immunity and should be dismissed, the court declines to address the other
grounds Defendant Haley raises for dismissal.
12
to the acts challenged by Plaintiffs and therefore they are entitled to Eleventh
Amendment immunity.
(Dkt. # 99).
Plaintiffs name these two Defendants as
successors of former SCBCB members Defendants Converse Chellis and Daniel
Cooper. (Am. Compl. at 5).
As noted above, in Count One, Plaintiffs allege Defendants who were members
of the SCBCB violated the ADA by failing to insure that SCDDSN funds were spent
appropriately for services provided to Plaintiffs. (Am. Compl. at 46). In Count Two,
Plaintiffs allege these Defendants have violated Section 504 by failing to insure that the
funds allocated to the SCDDSN were spent appropriately. (Am. Compl. at 51). In
Counts Three and Four, Plaintiffs allege claims pursuant to 42 U.S.C. § 1983 for
violations of the ADA, Medicaid, and the Section 504 for diverting funds from SCDDSN.
(Am. Compl. at 56-57).16 Plaintiffs’ claims against these two individual Defendants
revolve around the SCBCB’s vote in 2009 to allow SCDSSN to purchase real estate
with funds from an excess account. It is undisputed that Defendants Loftis and White
were not members of the SCBCB when these alleged acts occurred and are being sued
only in their official capacities as successors to the former SCBCB members.
As noted above, the Ex parte Young exception only applies to prospective
injunctive relief and a declaratory judgment against state officials declaring that they
violated federal law in the past constitutes retrospective relief, and is barred by the
Eleventh Amendment. Defendants Loftis and White are entitled to Eleventh Amendment
immunity for Plaintiffs’ claims based upon the actions of former members of SCBCB for
which Plaintiffs are seeking only retrospective relief. Furthermore, as for any
16
The court notes that in Count Three while Plaintiffs list various individual
Defendants and make allegations against them, none of the allegations in Count Three
specifically refer to these two Defendants. (Am. Compl. at 53-56).
13
prospective relief, as discussed in regard to Governor Haley, these Defendants as
members of the SCBCB do not have any control or enforcement rights over any agency
regarding the Plaintiffs’ ADHC or other Medicaid services. Therefore, to impose a
prospective injunction on these two Defendants would have no effect whatsoever.
Accordingly, Defendants Loftis and White’s Motion to Dismiss is granted and these
Defendants are dismissed from this action.
3. Defendant Cooper’s Motion to Dismiss
As noted above, Defendant Cooper is sued in both his individual and official
capacities. Plaintiffs’ claims against Defendant Cooper involve allegations regarding his
past conduct when he was a member of the SCBCB.
In his motion to dismiss,
Defendant Cooper contends, inter alai, that he is entitled to legislative and Eleventh
Amendment immunity.
Plaintiffs contend that they are not suing Cooper in his
legislative capacity. Plaintiffs also contend that because the unauthorized actions of the
individual SCBCB members were not within the sphere of legitimate legislative activities,
Cooper is not entitled to legislative immunity. (Pls.’ Mem. Opp. Mot. to Dismiss 2, 7).
Plaintiffs specifically state that “[a]ll of the relief requested by the Plaintiffs as to
Defendant Cooper is prospective” (Dkt. # 124 - Pls.’ Mem. Opp. Mot. to Dismiss at 12),
As to Plaintiffs’ claims against Cooper in his official capacity, the Eleventh
Amendment bars these claims. As stated above, the Ex parte Young exception to
Eleventh Amendment immunity only applies to prospective injunctive relief. Plaintiffs
would not be able to obtain any prospective injunctive relief from Defendant Cooper in
his official capacity as he is no longer a member of the SCBCB and would have no
authority to provide such relief.
17
Kuck, 822 F.Supp.2d 109, 148.17
Furthermore,
Moreover, as discussed herein, a current member of the SCBCB would not
have any control or enforcement rights over any agency regarding the Plaintiffs’ ADHC
14
Plaintiffs also cannot obtain prospective injunctive relief from Cooper in his individual
capacity as he would not have the authority to provide such relief in his individual
capacity. See DeLoreto v. Ment, 944 F.Supp. 1023, 1031 (D.Conn.1996) (finding that
“injunctive relief of reinstatement could only be awarded against Defendants in their
official capacities. Clearly, in their individual capacities they have no authority to
reinstate Plaintiffs.”); see also Smith v. Plati, 56 F.Supp.2d 1195, 1203 (D.Colo.1999)
(dismissing claims against state official in his individual capacity because the relief
plaintiff requested could only be obtained against the defendant in his official capacity).
All of Plaintiffs’ claims against Cooper should be dismissed as Cooper would have
absolutely no role to play in regard to providing Plaintiffs with any prospective injunctive
relief.18 Accordingly, Cooper’s motion to dismiss is granted.
As an additional ground for dismissal, the court finds Cooper is entitled to
legislative immunity for all of Plaintiffs’ claims against him in his individual capacity. In
Bogan v. Scott–Harris, 523 U.S. 44, 53–54 (1998), the Supreme Court held that city
council members were entitled to absolute immunity from § 1983 liability for “actions
taken in the sphere of legitimate legislative activity.” The Court found that the council's
action in eliminating certain services was legislative in substance because their action
“reflected a discretionary, policymaking decision implicating the budgetary priorities of
the city and the services the city provides to its constituents.”
Id. at 55–56. This
absolute legislative immunity does not apply only to legislators. Id. at 55. The Supreme
or other Medicaid services.
18
Additionally, as to allegations regarding members of the SCBCB, Plaintiffs do
not allege ongoing violations of the law, a failure which is fatal to their request for
injunctive relief. See Merryfield v. Jordan, 431 Fed. Appx. 743, 746 (10th Cir. 2011)
(noting that a plaintiff may seek prospective injunctive relieve against state officials in
federal court only when he alleges ongoing violations of federal law, and not where he
merely alleges prior violations).
15
Court acknowledged that executive branch officials are entitled to legislative immunity
when they perform legislative functions such as making discretionary policy decisions
that implicate budgetary priorities and the provision of public services. Id. at 55-56.19
“Whether an act is legislative turns on the nature of the act, rather than on the motive or
intent of the official performing it.” Bogan, 523 U.S. at 54. Legislative immunity only
extends to defendants sued in their individual capacities. Doe v. Pittsylvania County,
Va., 842 F.Supp.2d 906 (W.D.Va. 2012).
Recently, the Fourth Circuit Court of Appeals addressed legislative immunity in
Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 684 F.3d 462, 470 (4th Cir.
2012). In Kennsington, local volunteer fire and rescue departments and several former
administrative employees sued the county, county council, and county officials
contending that funding for the administrative personnel in the departments was
eliminated in retaliation for the departments’ opposition to legislation which would have
enacted an ambulance fee. The Fourth Circuit Court of Appeals noted that legislative
acts are ones which generally bear the marks of public decisionmaking by observing
formal legislative procedures. The court held that, despite allegations of an improper
retaliatory motive, the county officials were entitled to legislative immunity for enacting a
facially valid budget which eliminated the funding for the administrative support
positions.
Id.
Further, the court emphasized that while the county reduced the
departments’ budgets, it was the departments which decided how to address the
shortfall and terminated the individual administrative personnel. Id. at 469, 472.
Here, the acts of the SCBCB are “ones which generally bear the marks of public
19
Legislative immunity applies to claims for declaratory and injunctive relief, as
well as claims for damages. Supreme Court of Virginia v. Consumers Union of the U.S.,
Inc., 446 U.S. 719, 732–33 (1980).
16
decisionmaking by observing formal legislative procedures.” The SCBCB had the
authority to take the action which it did20 and reviewing the minutes of the SCBCB
meeting, the process appears facially to have been proper.21
The minutes from the
meeting show that proper notice was provided of the meeting pursuant to S.C. Code
Ann. § 30-4-80, the meeting was an open meeting, and the funds were expended
pursuant to S.C. Code Ann. § 44-20-1170 with the approval of the DSSN Board.22
Further, it was the DSSN Boards which have reduced or attempted to reduce the
services provided to Plaintiffs. Based on the foregoing, the court concludes that,
Defendant Cooper is entitled to legislative immunity.
Here, voting to approve
SCDDSN’s purchase of real estate with excess debt service funds was clearly a facially
20
Plaintiffs themselves allege in their complaint that the SCBCB is responsible for
“purchasing, personnel and real property transactions involving state and federal funds.”
(Am. Compl. at 4).
21
Typically on a motion to dismiss, a court cannot consider documents that are
not expressly incorporated into the complaint, but there are exceptions for “official public
records, documents central to plaintiff's claim, and documents sufficiently referred to in
the complaint so long as the authenticity of these documents is not disputed.” See
Witthohn v. Fed. Ins. Co., 164 Fed. App'x 395, 396, 2006 WL 228621, at *1 (4th Cir.
2006) (unpublished). Here, the court considers the minutes of the SCBCB meeting as it
is central to plaintiffs’ claims. Furthermore, both Plaintiffs and one of the Defendants
have attached the minutes as an exhibit to their memoranda (Dkt. # 81- Pls.’ Mem. Opp.
Mot. to Dismiss Ex. 8; 126 - Def. Cooper’s Reply Mem. Ex. A) and its authenticity has
not been questioned.
22
Section 44-20-1170 (B) provides:
If the accumulation of revenues of the commission in the special fund
exceeds the payment due or to become due during the then current fiscal
year and an additional sum equal to the maximum annual debt service
requirement of the obligations for a succeeding fiscal year, the State
Budget and Control Board may permit the commission to withdraw the
excess and apply it to improvements that have received the approval of
the board or to transfer the excess out of the special fund for contract
awards to local disabilities and special needs boards for needed
improvements at the local level and for nonrecurring prevention, assistive
technology, and quality initiatives at the regional centers and local boards.
17
valid legislative action.
Accordingly, based on the foregoing, Defendant Cooper’s
Motion to Dismiss is granted and he is dismissed from this action.23
4. Defendant Chellis’ Motion to Dismiss
As stated above, Defendant Chellis is being sued in both his individual and
official capacities. Plaintiffs state that they are suing Chellis for only prospective relief
and attorney’s fees. (Dkt. # 127 - Pls.’ Mem. Opp. Mot. to Dismiss at 4).24 In his Motion
to Dismiss, Defendant Chellis, a former South Carolina State Treasurer and former
member of the SCBCB, contends, inter alia, that Plaintiffs’ claims against him are
barred by legislative and Eleventh Amendment immunity. For the same reasons as
Defendant Cooper, the court finds that Defendant Chellis is entitled to legislative and
Eleventh Amendment immunity and likewise the court notes that even if it could award
Plaintiffs prospective injunctive relief against this Defendant, such injunctive relief would
be ineffective.
Defendant Chellis is not involved in any ongoing constitutional
deprivations and could not provide Plaintiffs, should they prevail, with the prospective
injunctive relief they seek. The undisputed fact is that, as a former SCBCB member, he
would have absolutely no role to play in regard to providing Plaintiffs with any
prospective relief. Accordingly, Defendant Chellis’ Motion to Dismiss is granted and he
23
Because the court concludes that Defendant Cooper is entitled to legislative
and Eleventh Amendment immunity and should be dismissed, the court declines to
address the other grounds he raises for dismissal.
24
Plaintiffs in their response, citing to their response to Defendant Loftis and
White’s Motion to Dismiss, state that they alleged that “Chellis failed to assure that
appropriations of money and the application thereof appeared on the Treasury books.”
(Dkt. # 127 - Pls.’ Mem. Opp. Mot. to Dismiss at 3). While Plaintiffs may have raised
this allegation in their memorandum, they did not make any such allegations in their
Amended Complaint. In fact, in their Amended Complaint, Plaintiffs allege only that they
are suing Chellis for actions taken as a member of the SCBCB. (Am. Compl. 5, 23-24,
46, ). While Chellis was a member of the SCBCB because he was the State Treasurer,
there are no separate allegations regarding Chellis and his duties as State Treasurer.
18
is dismissed from this action.25
IV. Conclusion
Based on the foregoing, Defendants’ Motions to Dismiss (Dkt. # 75, 99, 123, and
125) are GRANTED and Defendants Haley, Loftis, White, Cooper, and Chellis are
dismissed from this action.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
August 10, 2012
25
Because the court concludes that Defendant Chellis is entitled to legislative and
Eleventh Amendment immunity and should be dismissed, the court declines to address
the other grounds he raises for dismissal.
19
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