Kobe et al v. Mann et al

Filing 507

ORDER AND OPINION denying 483 Motion to Alter Judgment; denying 483 Motion for Reconsideration. Signed by Honorable Margaret B Seymour on 12/19/2018.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Kobe, Mark,

)
) C/A No. 3:11-1146-MBS
Plaintiffs,
)
)
vs.
)
) ORDER AND OPINION
Henry McMaster, in his capacity as
)
Governor1 of the State of South Carolina, )
et al.,
)
)
Defendants.
)
____________________________________)
FACTS AND PROCEDURAL HISTORY
This case has an extensive history. Briefly, Plaintiffs Kobe, Mark, and John2 filed a
complaint on May 11, 2011, and an amended complaint on October 18, 2011. Plaintiffs alleged the
following causes of action: Violation of the Americans With Disabilities Act (Count One); Violation
of Section 504 of the Rehabilitation Act (Count Two); Violation of 42 U.S.C. § 1983 (Count Three);
Violation of 42 U.S.C. §§ 1983 and 1988 (violation of civil rights) (Count Four); Violation of 42
U.S.C. § 1985(3) (conspiracy) (Count Five); Violation of the Supremacy Clause (Count Six); and
Violation of RICO (Count Seven).3

1

Governor McMaster was substituted for former Governor Nikki Haley pursuant to Fed.
R. Civ. P. 25(d) on July 25, 2017.
2

Plaintiff John was dismissed as a party on July 23, 2013. The court erroneously stated
in its order filed September 30, 2014, that Plaintiff Mark was dismissed as a party on July 23,
2013. ECF No. 296.
3

Plaintiff Kobe also asserted state law claims against the Babcock Center, a private entity
that provides services to persons with disabilities, as follows: Injuries to Kobe Caused by
Babcock Center, Judy Johnson and/or Agents and Employees of The Babcock Center Resulting

Of relevance here, the matter came before the court on motions for summary judgment filed
by Defendants on January 6, 2014. Plaintiff also filed a motion for summary judgment on January
6, 2014, which was amended on January 22, 2014. Plaintiff contended that the court should resolve
the following issues:
(1)

Have the Defendants violated the reasonable standards provision of 42 U.S.C.
§ 1396a(a)(17) of the Medicaid Act and the South Carolina Administrative
Procedures Act by failing to establish and utilize reasonable, ascertainable,
non-arbitrary standards and procedures to determine eligibility for and the
extent of medical assistance provided to Plaintiffs?

(2)

Have the Defendants violated the “reasonable promptness” requirement of the
Medicaid Act by failing to provide Kobe with the wheelchair and speech
device his physician ordered and by failing to provide residential services in
the least restrictive setting within ninety days of those needs being identified?

(3)

Have the Defendants violated the integration mandate of the Americans with
Disabilities Act by failing to provide Kobe with a wheelchair, a speech
device, speech therapy services and placement in a supervised apartment with
necessary support services?

ECF No. 25, 3.4
The court issued an order and opinion on September 30, 2014, concluding that Plaintiffs’
claims should be dismissed either as moot, not ripe, or because Plaintiffs lacked standing. ECF No.
296. Accordingly, the court granted Defendants’ motions for summary judgment. Plaintiffs timely
filed a notice of appeal. On December 15, 2016, the Court of Appeals for Fourth Circuit affirmed
in part, vacated in part, and remanded the action. ECF No. 368. First, the Fourth Circuit affirmed

From Neglect, Deliberate Indifference, Assault and Battery and Intentional Infliction of
Emotional Distress (Count Eight). Count Eight was dismissed with prejudice on March 20,
2015.
4

Plaintiff also asserted an issue regarding Kobe’s compensable injuries. As noted above,
this matter was resolved prior to trial.
2

the court’s rulings as to Mark on ripeness grounds. Id. at 33, n.21. Next, the Fourth Circuit affirmed
the court’s determination that the eligibility to receive ADHC services is moot based on the consent
orders entered with these Plaintiffs. Id. at 37.
The Fourth Circuit determined, however, that there was a “pattern of allegedly unreasonable
delays and improper denials” with respect to Kobe’s wheelchair and ACD entitlement. The Fourth
Circuit found that Defendants “have not met their ‘heavy burden’ of showing that after this litigation
has concluded, Kobe will not once again find himself without the equipment he needs and without
any ability to obtain it without significant delay.” Id. at 39. Therefore, the Fourth Circuit vacated
the court’s order on justiciability grounds, and remanded for further proceedings. Id. In addition,
the Fourth Circuit vacated the grant of summary judgment in favor of Defendants on Counts One
through Seven and remanded for further consideration of the viability of Plaintiffs’ claims against
each Defendant. Id. at 40.5
The matter again came before the court on Defendants’ motions for summary judgment on
remand, as well as on cross-motion for summary judgment filed by Plaintiffs. On March 30, 2018,
the court issued an order granting Defendants’ motions and denying Plaintiffs’ cross-motion. Mark’s
claims having been found moot by the Fourth Circuit, the court addressed only Kobe’s claims.6 The
court found, in relevant part, as follows:

5

The Fourth Circuit also remanded an order dismissing Defendant Nikki Haley, in her
capacity as Governor of South Carolina (currently, Henry McMaster, in his capacity as Governor)
on the basis of Eleventh Amendment immunity. That dispute was resolved and a stipulation of
dismissal filed on July 2, 2018. ECF No. 501.
6

Mark was terminated as a Plaintiff on September 30, 2014.
3

A.

Amended Motion for Summary Judgment on Remand filed by Defendants
Buscemi, Laurent, Butkus, Huntress, Lacy, Waring, and Chorey (the “DDSN
Defendants”)

The DDSN Defendants observe that, as to them, Plaintiff has shown no need
for prospective injunctive relief and has abandoned any damages claims, such that
these Defendants are entitled to dismissal of the case against them in its entirety. As
to the merits of Plaintiff’s allegations, the DDSN Defendants assert that Counts 1
(ADA) and 2 (Rehabilitation Act) essentially present the same contention that
Plaintiff was wrongfully denied ADHC services. As noted hereinabove, the Fourth
Circuit has determined this particular contention is moot because Plaintiff did not
lose ADHC services and, further, were successful on administrative appeal.
The DDSN Defendants assert that any non-ADA or non-Rehabilitation Act
claims against these Defendants in their official capacities are barred by the Eleventh
Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)). As
to Plaintiff’s § 1983 claims against the DDSN Defendants in their individual
capacities (Counts 3, 4), these Defendants argue that Plaintiff failed to show any
specific factual allegations of wrongdoing attributable to any of the named DDSN
Defendants. Regarding Plaintiff’s claim that he was denied a wheelchair and ACD,
the DDSN Defendants assert these claims are directed to the DHHS Defendants,
Keck and Fortner. Regarding Count 5, the DDSN Defendants asserts that Plaintiff’s
claims relate to a conspiracy to deny him ADHC services, and because such services
were not denied, “obviously there could not have been a conspiracy to effect such
denial.” ECF No. 399-1, 11.
Regarding Count 6, the DDSN Defendants note the dearth of factual
allegations in the amended complaint under this cause of action, which simply states:
376.

Defendants have violated the following provisions of the
Medicaid Act, in violation of the Supremacy Clause of the
United States Constitution: reasonable promptness (42 U.S.C.
§ 1396(a)(8)); free choice (42 U.S.C. § 1396(a)(23));
comparability (42 U.S.C. § 1396(a)(10)); reasonable
standards (42 U.S.C. § 1396a(a)(17)) and equal access (42
U.S.C. § 1396a(a)(30)) provisions of the Social Security Act.

ECF No. 65, 64.
The DDSN Defendants assert Plaintiff has set forth no facts showing harm
to Plaintiff or specific acts by these Defendants that resulted in violations of
enumerated sections of the Medicaid Act and Social Security Act.

4

Finally, regarding Count 7, the DDSN Defendants contend that Plaintiff has
failed to allege (1) one of the “predicate acts” set forth in 18 U.S.C. § 1961(1); (2)
how, if at all, the purported activities of the criminal enterprise affected interstate or
foreign commerce; or (3) any evidence Plaintiff suffered a business or property loss.
In his response in opposition, Plaintiff offers a lengthy recitation of factual
allegations and appears to address only the following causes of action as to DDSN:
Count 5 (conspiracy to interfere with civil rights); Count 6 (Supremacy Clause), and
Count 7 (RICO). Plaintiff does not dispute the DDSN Defendants’ arguments
regarding Counts 1, 2, 3, and 4. The court concludes Plaintiff has abandoned these
causes of action as to these Defendants.
Turning to Count 5 (conspiracy to deny civil rights), Plaintiff asserts the
following in his response in opposition to the DDSN Defendants’ motion for
summary judgment:
Plaintiffs have alleged that they have been deprived of services and
needed equipment and due process, liberty and equal protection
rights. Kobe has demonstrated that he has suffered discrimination
and [been] injured thereby as a consequence of overt acts committed
by the named Defendants in connection with the conspiracy.
ECF No. 436, 34.
Plaintiff’s argument is based on his contention that DHHS, DDSN, and other
agencies have engaged in wide-spread corruption, negligence, and criminal conduct
over the past decade or more. In the court’s view, Plaintiff’s allegations fail to
demonstrate any of the DDSN Defendants’ purported mismanagement and
falsification of information, if such conduct were to be proven, was motivated by a
specific class-based, invidiously discriminatory animus to deprive Plaintiff of his
rights. In point of fact, Plaintiff alleges that the “conspiratorial purpose was
financial.”
Regarding Count 6 (Supremacy Clause), Plaintiff states that the “future
deterrence of violations is critically important in this case, because Plaintiffs have life
long disabilities and their needs will increase as they age. Waiver participants simply
cannot afford years of litigation each time they require a wheelchair, a speech device
or other medically necessary services.” ECF No. 436, 31-32. The Supremacy Clause
is not the source of any federal rights, and does not create a cause of action.
Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378, 1383 (2015). It
instructs courts what to do when state and federal law clash, but is silent regarding
who may enforce federal laws in court, and in what circumstances they may do so.
Id. Moreover, there is no suggestion in the record by any party of a clash between
5

state and federal law. The gravamen of Plaintiff’s complaint is that Defendants have,
in varying respects, failed to comply with the mandates set forth in the ADA,
Rehabilitation Act, and Medicaid.
Finally, regarding Count 7 (RICO), Plaintiff asserts that he has provided
“extensive documentation of conduct of an enterprise (the diversion of funds to
DDSN work activity centers) through a pattern of racketeering activity.” ECF No.
436, 35. Plaintiff asserts predicate acts to include “obtaining insurance through false
pretenses, including money laundering, mail and wire fraud and intimidation of
witnesses.” Id. While it is true that Plaintiff has made allegations of corruption, his
claims are speculative in nature. The court discerns no facts tending to show an
enterprise distinct from the persons alleged to have violated 18 U.S.C. § 1962 (c).
See Palmetto State Med. Ctr. v. Operation Lifeline, 111 F.3d 142, 148 (4th Cir. 1997).
Nor has Plaintiff proved that each DDSN Defendant engaged in at least two acts of
racketeering activity within a ten-year period, as required by 18 U.S.C. § 1961(5).
For all these reasons, the DDSN’s motion for summary judgment is granted.
....
C.

Motion to Dismiss and for Summary Judgment filed by Defendant Leitner

Defendant Leitner asserts that she is entitled to summary judgment as to
Plaintiff’s claim against under Count 3 (42 U.S.C. § 1983), the only count in which
she is named. See ECF No. 65, ¶ 311. Defendant Leitner notes that the only factual
allegations in the amended complaint alleges that on January 5, 2011, she, as Director
of the Richland Lexington Disabilities Board, sent a letter to Plaintiff alerting him
that a review of ADHC services was forthcoming. Defendant Leitner states that, as
discussed above, Plaintiff was never denied ADHC services, and there are no other
factual allegations of wrongdoing with respect to her that she violated Plaintiff’s
constitutional rights. Defendant Leitner also argues that she was not involved in the
DHHS denials of Plaintiff’s applications for an ACD. According to Defendant
Leitner, it was through the Richland Lexington Disabilities Board that an ACD was
borrowed for Plaintiff through the University of South Carolina Assistive Technology
Program in 2013, and also through the Richland Lexington Disabilities Board that
Plaintiff’s case manager recently procured an ACD for Plaintiff’s permanent use
through the South Carolina Vocational Rehabilitation Department. Defendant
Leitner contends there is no genuine issue of material fact but that she did not deprive
Plaintiff of his constitutional or statutory rights.
In response, Plaintiff asserts, without competent evidence, that Defendant
Leitner: (1) has failed to explain why Plaintiff’s requests to move to a less restrictive
environment were not transmitted to DDSN; (2) “made a conscious decision to
inform Judy Johnson that [Plaintiff] intended to move from the Babcock Center,
6

when she was asked not to share that information until the placement had been
arranged. Then, she colluded with Johnson in an attempt to enlist [Plaintiff’s]
mother to prevent him from moving from a group home where he had been abused
and neglected”; (3) failed to timely provide Plaintiff with written notices containing
all of the information required by 42 C.F.R. § 431.210, likely because of “collusion
with DDSN and DHHS Defendants to attempt to moot [Plaintiff’s] lawsuit (by
obtaining a ‘loaner’ device).” ECF No. 435-36. Plaintiff’s “unsubstantiated
allegations and bald assertions” are not adequate to defeat summary judgment. See
Evans v. Tech. Application & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).
Defendant Leitner’s motion for summary judgment is granted.
D.

Motion for Summary Judgment filed by Defendants Keck and Forkner (the
“DHHS Defendants”)

Plaintiff alleges that the DHHS Defendants failed to provide Plaintiff with an
ACD and wheelchair. Plaintiff’s allegations arise under the ADA and the
Rehabilitation Act (Counts 1, 2), 42 U.S.C. § 1983 (Counts 3, 4), conspiracy (Count
5), and RICO (Count 6).
The DHHS Defendants first contend that Plaintiff cannot show he was
excluded from possessing an ACD on the basis of his disability. These Defendants
contend that Plaintiff’s request was reviewed and it was determined that an ACD
with pre-recorded messages, as opposed to the requested ACD that synthesized
speech, would provide him with adequate speech support. According to the DHHS
Defendants, Plaintiff chose to proceed in this court rather than the administrative
appeal process regarding the DHHS Defendants’ decision. The DHHS Defendants
argue that the evidence shows only a difference of opinion as to the type of ACD that
would be appropriate for his condition. The DHHS Defendants further contend this
issue is moot because the ACD Plaintiff desired now has been approved and provided
to him.
Regarding Plaintiff’s wheelchair, the DHHS Defendants state that no request
for a wheelchair was made to DHHS to be approved or denied. These Defendants
inform the court, however, that Plaintiff submitted a request for a wheelchair on July
24, 2013, which was approved by DHHS on August 2, 2013. The wheelchair has
been provided to Plaintiff. The DHHS Defendants assert that this issue also is moot.
As to Plaintiff’s § 1983, § 1985, and RICO causes of action, the DHHS
Defendants assert that the amended complaint is devoid of any factual allegations
regarding actions or omissions by them aside from conclusory statements of
wrongdoing, and, further, that any claims revolved around Plaintiff’s contentions that
Defendants attempted to deprive him of his right to participate in ADHC services.
7

These Defendants also assert that Plaintiff cannot maintain a cause of action under
the Supremacy Clause.
Plaintiff’s specific response in opposition to the DHHS Defendants’ motion
for summary judgment is that, if there were a difference of professional opinions
regarding the type of ACD Plaintiff needed, DHHS should have sent a notice
containing all information required by 42 C.F.R. § 431.201 to Plaintiff, and not just
to the case manager and provider. Plaintiff fails to state how delivering a copy of any
notice to him personally creates an issue of fact that should be submitted to a jury.
The DHHS Defendants’ motion for summary judgment is granted as to Counts 1
(ADA), 2 (Rehabilitation Act), and Counts 3 and 4 (§ 1983).
Plaintiff includes the DHHS Defendants in his argument regarding the DDSN
Defendants regarding Counts 5 (conspiracy), Count 6 (Supremacy Clause), and
Count 7 (RICO). For the reasons set forth hereinabove in Section A, the DHHS
Defendants’ motion for summary judgment is granted as to these claims.
The court is mindful that the Fourth Circuit found “pattern of allegedly
unreasonable delays and improper denials” with respect to Plaintiff’s wheelchair and
ACD entitlement, and that the DHHS Defendants need to show “that after this
litigation has concluded, [Plaintiff] will not once again find himself without the
equipment he needs and without any ability to obtain it without significant delay.”
The DDHS Defendants represented to the court that an ACD acceptable to Plaintiff
as well as a wheelchair have been provided to him on a permanent basis. Plaintiff
contends that these Defendants continue to ignore the requirements of 42 U.S.C. §
1396a(a)(8) and have not provided him with services to be provided in a noncongregate setting; for speech services, including a swallow study, and for a bed that
will allow him to raise the elevation of his head to prevent aspiration. According to
the DDHS Defendants, these new claims lack factual basis in the record. Moreover,
according to the DDHS Defendants, Plaintiff’s request for a hospital bed was
submitted for authorization on August 6, 2013, approved by these Defendants on
August 12, 2013, and paid for by Medicaid on August 23, 2013. The court declines
to consider Plaintiff’s newly asserted allegations.
E.

Motion for summary judgment filed by Defendants Babcock Center and Judy
Johnson (the “Babcock Defendants”)

The Babcock Defendants first argue that Plaintiff cannot establish the
Babcock Defendants violated the ADA (Count 1). The Babcock Defendants state
that the only claims involving them revolve around participation in the ADHC
program, which issue is moot. Regarding the Rehabilitation Act (Count 2), these
Defendants contend that Plaintiff fails to assert any specific actions taken by Johnson,
in her individual capacity as she is named, to support his claim that Johnson
8

personally discriminated against him based on his disability.
Regarding Plaintiff’s § 1983 causes of action (Counts 3, 4), the Babcock
Defendants assert that the Babcock Center is not a governmental entity acting under
color of state law. In support of their assertion, these Defendants attach to their
motion for summary judgment a copy of their business filing with the South Carolina
Secretary of State. As to conspiracy to interfere with civil rights (Count 5), the
Supremacy Clause (Count 6), and violations of RICO (Count 7), the Babcock
Defendants make generally the same arguments as the DDSN Defendants and the
DHHS Defendants.
In his response in opposition, Plaintiff relies on his recitation of
mismanagement and investigation into the Babcock Center, and intimates that the
Babcock Defendants possessed a financial incentive to limit expenditures for
assistive technology and equipment. The court finds that Plaintiff’s argument fails
to establish discrimination on the basis of disability. Plaintiff also disputes
Defendants’ contention that the Babcock Center is not a governmental entity.
Although there exist situations when a private organization may be treated as a public
entity, see, e.g., Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288 (2001), Plaintiff does not engage in the analysis.
The DHHS Defendants’ motion for summary judgment is granted as to
Counts 1 (ADA), 2 (Rehabilitation Act), and Counts 3 and 4 (§ 1983).
Plaintiff includes the Babcock Defendants in his argument regarding the
DDSN Defendants and DHHS Defendants regarding Counts 5 (conspiracy), Count
6 (Supremacy Clause), and Count 7 (RICO). For the reasons set forth hereinabove
in Sections A and D, the Babcock Defendants’ motion for summary judgment is
granted as to these claims.
....
F.

Plaintiff’s Motion for Partial Summary Judgment

Plaintiff asserts the following issues: (1) Defendants are in violation of the
feasible alternatives, comparability and reasonable promptness requirements of the
Medicaid Act which are enforceable under § 1983; (2) Defendants are in violation
of the integration mandate of the Americans with Disabilities Act.
To the extent Plaintiff raises arguments in tandem with her responses in
opposition to Defendants’ various motions for summary judgment (excluding
Defendant McMaster’s motion to dismiss), his motion for partial summary judgment
is denied for the reasons set forth hereinabove.
9

To the extent Plaintiff raises new claims not asserted in the amended
complaint, his motion for partial summary judgment is denied without prejudice
to allow him raise his allegations in a new action.
To the extent Plaintiff raises arguments barred by the mandate rule, his
motion for partial summary judgment is denied.
To the extent Plaintiff asserts damages claims against Defendants (excluding
Defendant McMaster), his motion for partial summary judgment is denied for the
reasons set forth in the Fourth Circuit’s opinion.
To the extent Plaintiff seeks injunctive relief for events occurring after the
filing of the amended complaint, his motion for partial summary judgment is denied
without prejudice to allow him to seek injunctive relief in a new action.
Plaintiff does not dispute the DDSN Defendants’ arguments regarding Counts 1, 2,
3, and 4. The court concludes Plaintiff has abandoned these causes of action as to
these Defendants.
ECF No. 475.
This matter now is before the court on Plaintiff’s motion for reconsideration, which motion
was filed on April 27, 2018. See Fed. R. Civ. P. 59(e). The DDSN Defendants filed a memorandum
in opposition on May 10, 2018; Defendant Leitner filed a response in opposition on May 11, 2018,
the DDHS Defendants filed a response in opposition on May 11, 2018; and the Babcock Defendants
filed a response in opposition on June 1, 2018.7 Plaintiff filed an omnibus reply to Defendants’
responses on June 15, 2018.
DISCUSSION
Although Rule 59 addresses grounds for new trials, some courts have reasoned that the
concept of a new trial under Rule 59 is broad enough to include a rehearing of any matter decided
by the court without a jury.

11 Wright & Miller, Federal Practice & Procedure § 2804.

7

The Governor filed a response on May 11, 2018; however, as noted above, the Governor
is no longer a party to this action.
10

Notwithstanding the broad nature of Rule 59, motions for reconsideration are disfavored. They are
not a matter of routine practice. Settino v. City of Chicago, 642 F. Supp. 755, 759 (N.D. Ill. 1986).
Several courts have observed that they are neither expressly cognizable under the Federal Rules of
Civil Procedure nor authorized by the local rules of the district court. See, e.g., Fisher v. Samuels,
691 F. Supp. 63, 74 (N.D. Ill. 1988).
Motions for reconsideration are inappropriate merely to introduce new legal theories or new
evidence that could have been adduced during the pendency of the prior motion. Keene Corp. v.
International Fidelity Ins. Co., 561 F. Supp. 656 (N.D. Ill.), aff’d, 736 F.2d 388 (7th Cir. 1982). The
Fourth Circuit recognizes only three limited grounds for a district court’s grant of a motion under
Rule 59(e): (1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available earlier; or (3) to correct a clear error of law or prevent manifest injustice.
Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993). The Fourth Circuit has emphasized that
counsel’s mere disagreement with the court’s ruling does not warrant a Rule 59(e) motion. Id.
(citing Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)).
A.

Private Attorneys General (ECF No. 493, 1)
Plaintiff contends that the court erred in failing to recognize that “Plaintiffs brought this

action in their important role as private attorneys general, not only for themselves, but also for others
whose important civil rights continue to be denied.” ECF No. 83, 1. However, the Supreme Court
has stated that “the Medicaid Act implicitly precludes private enforcement of [42 U.S.C. 1396a)],
and [parties] cannot . . . circumvent Congress’s exclusion of private enforcement.” Armstrong v.
Exceptional Child Center, Inc., 135 S.C. 1378, 1385 (2015) (citing Douglas v. Independent Living
Center of Southern Cal., Inc., 132 S. Ct. 1204, 1212–13 (2012) (Roberts, C.J., dissenting)). The
11

Court noted that “the sole remedy Congress provided for a State’s failure to comply with Medicaid’s
requirements—for the State’s ‘breach’ of the Spending Clause contract—is the withholding of
Medicaid funds by the Secretary of Health and Human Services.” Id. (citing 42 U.S.C. § 1396c).
The Court explained that the “express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.” Id. (citing Alexander v. Sandoval, 532 U.S.
275, 290 (2001)). Plaintiff’s contention is without merit.
B.

Claims for Non-Congregate Placement and Compliance (ECF No. 493, 3)
Plaintiff states that the court erred in determining Plaintiff’s requests for noncongregate

placement and compliance with the ADA, the Rehabilitation Act, the Medicaid Act, and due process
are “new.” ECF No. 483, 3. Plaintiff states he has
consistently complained that Defendants have violated the integration mandate of the
ADA and the requirements of the Rehabilitation Act that require services to be
provided in the least restrictive setting. [He] presented extensive evidence in the
form of affidavits, opinions from other cases, and audits showing that Defendants
have failed and continue to fail to comply with the reasonable promptness
(1396a(a)(8), reasonable standards (1936a(a)(17) [sic], feasible alternatives (42
U.S.C. § 1396n(c)(2)) and comparability (1396a(a)(10) mandates of the Medicaid
Act.
Id.
Plaintiff contends that Defendants continually ignore the requirements of 42 C.F.R. §
431.200, et seq. Section 431.200 provides:
This subpart—
(a) Implements section 1902(a)(3) of the Act, which requires that a State plan provide
an opportunity for a fair hearing to any person whose claim for assistance is denied
or not acted upon promptly;
(b) Prescribes procedures for an opportunity for a hearing if the State agency or
non-emergency transportation PAHP (as defined in § 438.9(a) of this chapter) takes
12

action, as stated in this subpart, to suspend, terminate, or reduce services, or of an
adverse benefit determination by an MCO, PIHP or PAHP under subpart F of part
438 of this chapter; and
(c) Implements sections 1919(f)(3) and 1919(e)(7)(F) of the Act by providing an
appeals process for any person who—
(1) Is subject to a proposed transfer or discharge from a nursing facility; or
(2) Is adversely affected by the pre-admission screening or the annual resident
review that are required by section 1919(e)(7) of the Act.
(d) Implements section 1943(b)(3) of the Act and section 1413 of the Affordable
Care Act to permit coordinated hearings and appeals among insurance affordability
programs.
Plaintiff’s arguments in this section seeks to challenge Defendants’ alleged failure to comply
with the Medicaid Act. Plaintiff’s contentions are without merit for the reasons stated in the
previous section.
C.

Abandonment of Claims (ECF No. 483, 4)
Plaintiff denies abandoning claims for violation of the ADA and the Rehabilitation Act.

Plaintiff contends that he has raised issues relating not only to the denial of service, but Defendants’
failure to provide services in a setting less restrictive than a CTH II. ECF No. 483, 6. However, the
Fourth Circuit observed that Plaintiff “offer[ed] no challenge to the district court’s ruling that their
claim that Kobe is entitled to be provided with an SLP is unripe. Nor do they challenge the ruling
that [Kobe’s] claim demanding payment for the speech pathologist who evaluated Kobe and
provided him with speech services fell outside the scope of their complaint.” Kobe v. Haley, 666
F. A’ppx 281, 285, n.21 (4th Cir. 2016). Plaintiff’s arguments regarding denial of service and failure
to provide services in a less restrictive setting are outside the scope of the Fourth Circuit’s remand.
Plaintiff contends the court also “erred in failing to address Plaintiff’s § 1983 claims for
13

violation of the reasonable promptness, reasonable standards, comparability and feasible alternative
mandates[.]” ECF No. 483, 6. As the court previously noted, Plaintiff’s § 1983 claims failed to
show any specific factual allegations of wrongdoing attributable to any Defendant. In his motion to
alter or amend, Plaintiff again argues, as he did on summary judgment prior to remand, that
“Defendants reduced access to services based on blatantly false claims of ‘budget reductions’ and
audits provided by Plaintiffs show that, while reducing services, DDSN and DHHS overbilled the
federal government for insurance claims (Medicaid) by tens of millions of dollars,” and that
Defendants engaged in wire fraud, defrauded the government by filing false claims, and witness
tampering. ECF No. 483, 7.
Regarding his conspiracy claim, Plaintiff realleges his assertion that Defendants conspired
to “[keep] him in a setting that is more restrictive than his entire treatment team has recommended.”
Id. at 8. As noted hereinabove, any allegations by Plaintiff that he should be placed in a congregate
setting are not ripe. With respect to Plaintiff’s ADA cause of action, the court previously noted that
Plaintiff cannot show disability discrimination. Plaintiff’s own contention is that he cannot receive
services requested because Defendants have surreptitiously diverted Medicaid funds without
accountability. Plaintiff’s contentions are without merit.
D.

Babcock Center (ECF No. 483, 10)
Plaintiff asserts that the court erred in dismissing claims against the Babcock Defendants on

the grounds that they did not act under color of state law. Plaintiff contends that the Babcock
Defendants participated in a money laundering scheme and that Defendant Johnson joined with other
Defendants to attempt to limit Plaintiff’s access to assistive technology. However, as the court
previously found, Plaintiff provided no analysis in his omnibus response to summary judgment with
14

respect to the factors set forth in Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288 (2001), and other authorities. Plaintiff’s contention is without merit.
E.

Defendant Leitner (ECF No. 483, 11)
Plaintiff asserts the court erred in ruling that Defendant Leitner was sued only under Count

Three. As the court previously observed, the only factual allegation against Defendant Leitner is that
on January 5, 2011, she, as Director of the Richland Lexington Disabilities Board, sent a letter to
Plaintiff alerting him that a review of ADHC services was forthcoming. As in his motion for
summary judgment, Plaintiff contends Leitner cooperated with other Defendants to limit services
and force Plaintiff into remaining in an unsafe institution.
The court previously held that Plaintiff’s unsubstantiated allegations and bald assertions are
not adequate to defeat summary judgment. Plaintiff’s contention is without merit.
F.

RICO Claims (ECF No. 483, 11)
Plaintiff contends the court erred in failing to address his evidence that he contends

“demonstrated patterns of money laundering, diversion of insurance proceeds, intimidation of
witnesses and other violations described in Count Seven.” ECF No. 483, 12. Plaintiff points the
court to no competent evidence in support of his RICO claims. Plaintiff’s contention is without
merit.
CONCLUSION
Plaintiff has failed to demonstrate an intervening change in controlling law, the existence of
new evidence not available earlier, or the need to correct a clear error of law or prevent manifest
injustice. Plaintiff merely expresses his disagreement with the court’s ruling. Plaintiff’s motion to

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alter or amend (ECF No. 483) is denied.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
December 19, 2018

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