Sullivan v. S.C. Dept. of Mental Health et al

Filing 62

ORDER RULING ON REPORT AND RECOMMENDATION: The Report and Recommendation, ECF No. 49 , is adopted in its entirety and incorporated herein. Defendants' motions to dismiss, ECF Nos. 28 and 34 , are granted. Plaintiff's request for a preliminary injunction, ECF No. 22 , is denied. IT IS SO ORDERED. Signed by Honorable Sherri A Lydon on 3/27/2024. (mcot, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Charles T. Sullivan,

C/A No. 5:23-cv-1077-SAL
Plaintiff,

v.

ORDER

South Carolina Department of Mental
Health; Wellpath Recovery Solutions a/k/a
Correct Care Recovery Solutions a/k/a
Correct Care of South Carolina; Kelly
Gothard; Elizabeth Hutto; and Captain
Tyrone Werts,
Defendants.
This matter is before the court for review of the Report and Recommendation of United
States Magistrate Judge Kaymani D. West made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2) (D.S.C.) (the “Report”). [ECF No. 49.] The Report recommends the court
grant motions to dismiss filed by Defendants Kelly Gothard, Elizabeth Hutto, Captain Tyrone
Werts, and the South Carolina Department of Mental Health, ECF No. 28, and by Wellpath
Recovery Solutions (“Wellpath”), ECF No. 34. For the reasons below, the court adopts the Report
and grants Defendants’ motions.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Charles T. Sullivan is involuntarily committed to the custody of the South
Carolina Department of Mental Health (“SCDMH”) pursuant to the Sexually Violent Predator Act
(“SVPA”), S.C. Code Ann. § 44-48-10, et. seq. [ECF No. 22 at 1–2.] He alleges Defendants
violated his constitutional right to marry by refusing to transport him to a mandatory appointment
with the United States Citizenship and Immigration Services (“USCIS”). Id. at 2–8. The
appointment concerned a visa application for his fiancée, a resident of the United Kingdom. Id. at

1

5. Sullivan claims Defendants denied his transportation request because the appointment was not
related to the SVPA treatment program. Id. at 6. He further alleges Defendants’ decision resulted
in the denial of his fiancée’s application—a ruling which he may not appeal and which cost him a
nonrefundable fee of $545. Id. at 5–8.
Sullivan now seeks a declaratory judgment that Defendants violated his rights under the
Equal Protection and Due Process Clauses of the United States Constitution. Id. at 1. He also
seeks damages, along with preliminary and permanent injunctions ordering Defendants to: (1)
transport him to any future USCIS appointments that may emerge upon refiling his application,
and (2) create a grievance policy allowing involuntarily committed residents to appeal “decisions
regarding their rights.” Id. at 15.
Defendants move to dismiss Sullivan’s claims under Federal Rule of Civil Procedure
12(b)(6). [ECF Nos. 28, 34.] They claim immunity from liability and argue that, in any event,
Sullivan does not allege a cognizable constitutional violation. The magistrate judge recommends
the court grant the motions. [ECF No. 49.] Sullivan filed objections to the Report, ECF No. 56,
and Defendants replied, ECF Nos. 57–58. This matter is now fully briefed and ripe for review.
REVIEW OF A MAGISTRATE JUDGE’S REPORT
The magistrate judge makes only a recommendation to the court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). In response to a recommendation,
any party may file written objections. See Elijah v. Dunbar, 66 F.4th 454, 459 (4th Cir. 2023)
(citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3)). The district court then reviews de
novo only the portions of the Report to which a party has specifically objected. Id. An objection
is sufficiently specific if it reasonably alerts the court to a party’s true objection to the Report. Id.

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at 460 (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). If instead a litigant
objects only generally, the court reviews the Report for clear error and need not provide an
explanation for adopting the recommendation. See Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Because Sullivan is proceeding pro se, the court must liberally construe his arguments to
allow him to fully develop potentially meritorious claims. See Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). That said, the requirement
of liberal construction does not mean the court can ignore a clear failure to allege facts setting forth
a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
DISCUSSION
I.
Sullivan presents his claims under the Declaratory Judgment Act, 28 U.S.C. § 2201. [ECF
No. 22.] The statute is “an enabling Act, which confers a discretion on the courts rather than an
absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (citation
omitted). As such, the court’s assumption of jurisdiction over a declaratory judgment action is not
“automatic or obligatory.” Id. at 288. “[T]he question in each case is whether the facts alleged,
under all the circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).
The Report correctly finds that Sullivan does not plead facts sufficient to justify a
declaratory judgment. [ECF No. 49 at 9–10.] In the complaint, Sullivan indicates that USCIS
denied his fiancée’s visa application in January 2023. [ECF No. 22 at 8.] He also clearly states
that the decision was not appealable. Id. And though Sullivan now seeks declaratory relief “so
that any efforts to re-file will no longer be subject to Defendants[’] arbitrary discretion,” his
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controversy is only speculative at this point. Id. at 10 (emphasis added). The court thus agrees
that this suit should not be adjudicated as a declaratory judgment action.1
The court also agrees that Sullivan’s complaint is “better framed” as a 42 U.S.C. § 1983
claim. [ECF No. 49 at 10.] Under § 1983, plaintiffs may recover for violations of rights secured
by the Constitution or laws of the United States committed by persons acting “under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, Sullivan alleges Defendants infringed on his
constitutional right to marry by denying his transportation request, and he claims they will repeat
this conduct when he reapplies for a visa. Sullivan names Defendants who acted to carry out the
SVPA treatment program, an initiative created by the South Carolina legislature and administered
by the South Carolina Department of Mental Health. See S.C. Code Ann. § 44-48-10, et. seq. His
complaint then is more properly construed as a § 1983 action.
II.
Even so construed, however, Sullivan’s claims fail. To begin, several named Defendants
are not amendable to suit under § 1983. Additionally, to the extent they are properly named,
Sullivan does not plead an actionable constitutional violation. The court considers the Defendants
in turn.
A. Wellpath
Section 1983 provides that a defendant must be a “person” acting under color of state law.
Based on the complaint, Wellpath is a “for-profit corporation with whom Defendant [SC]DMH
has contracted to administer the day-to-day operations” of the SVPA treatment program. [ECF
No. 22 at 3.] As such, the Report correctly concludes that Wellpath is not a person within the

1

Though Sullivan objects to the Report’s finding, he offers nothing to support jurisdiction beyond
stating that “a justiciable controversy exists” and that dismissal “would leave . . . ‘clearly established
rights’ unclear.” [ECF No. 56 at 9, 19.]
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meaning of § 1983 and thus cannot be held liable for Sullivan’s claims. [ECF No. 49 at 11
(collecting cases).]
B. SCDMH and Gothard, Hutto, and Werts in their Official Capacities
Defendants SCDMH and the individuals named in their official capacities may not be sued
under § 1983 because they are entitled to Eleventh Amendment immunity.

The Eleventh

Amendment to the United States Constitution precludes unwelcomed suits against a state by its
own citizens. See Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). The Supreme Court has held
that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983,”
because they are immune from suit. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
This immunity extends to a state’s agents and instrumentalities. Regents of the Univ. of California
v. Doe, 519 U.S. 425, 429 (1997). SCDMH is an agency of the state of South Carolina, and the
Defendants named in their official capacities each work for that agency. Thus, they are “arms of
the State” for Eleventh Amendment purposes and may not be sued under § 1983. Will, 491 U.S.
at 70 (citation omitted).
Sullivan objects that the individual Defendants can be sued in their official capacity under
the Ex Parte Young exception. [ECF No. 56 at 10–11.] This exception is “based on the notion,
often referred to as ‘a fiction,’ that a State officer who acts in violation of the Constitution is
‘stripped of his official or representative character and is subjected in his person to the
consequences of his individual conduct.’” Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002)
(quoting Ex Parte Young, 209 U.S. 123, 160 (1908)). To determine whether the exception applies,
a court must consider “whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Biggs v. North Carolina Dep't of Pub. Safety,
953 F.3d 236, 242 (4th Cir. 2020) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535

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U.S. 635, 645 (2002)). It is not enough that a plaintiff merely seeks injunctive relief. Antrican,
290 F.3d at 184.
Sullivan’s complaint does not seem to allege an ongoing violation. He claims that USCIS
has already denied his fiancée’s visa application. [ECF No. 22 at 8.] He also states that the
decision was final and cannot be appealed. Id. Sullivan does not indicate that he has filed another
application with USCIS, nor that he has any pending travel requests with SCDMH. See ECF No.
56 at 3. Based on these claims, Sullivan seems to allege a speculative threat rather than a continued
harm.
Nevertheless, Sullivan now objects that the Ex Parte Young exception applies because
Defendants “will again deny his request when he reapplies for a visa.” Id. at 4. He also claims
that “Defendants have made [this] clear” to him. Id. at 11. If true, these allegations would indeed
suggest ongoing conduct. See Freedom From Religion Found. v. Abbott, 955 F.3d 417, 424–26
(5th Cir. 2020). But these new claims notably do not appear in the complaint. See E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448–49 (4th Cir. 2011) (limiting district courts
to materials contained in the complaint on a 12(b)(6) motion). And even assuming the exception
applies, Sullivan cannot succeed against the individual Defendants in their official capacity for the
same reasons, discussed below, that he cannot state a claim against them in their individual
capacities.

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C.

Gothard, Hutto, and Werts in their Individual Capacities

Sullivan may not recover against the Defendants named in their individual capacities
because he does not allege a cognizable due process or equal protection violation.
1.

Due Process

In his complaint, Sullivan correctly asserts that the Due Process Clause guarantees him a
fundamental right to marry. See ECF No. 22 at 8; see also Loving v. Virginia, 388 U.S. 1 (1967).
He also rightly notes that he retains this constitutional right, even while involuntarily committed.
See Turner v. Safley, 482 U.S. 78, 84 (1987); Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982).
However, Sullivan does not show that the named SCDMH employees violated his right to marry
when they prevented him from attending his visa appointment.
The Supreme Court rejected a similar claim in Kerry v. Din, 576 U.S. 86 (2015). There, a
United States citizen alleged that the Government abridged her constitutional right to marry when
it declined to issue an immigration visa to her husband, an Afghan citizen. Din, 576 U.S. at 88.
The Court noted the “long practice of regulating spousal immigration” and unequivocally stated
that the Government had “not attempted to forbid a marriage.” Id. at 94–95. To conclude
otherwise, it found, would be to “supplement[] the fundamental right to marriage with a
fundamental right to live in the United States in order to find an affected liberty interest.” Id. at
94. The Court also noted that “[n]othing” in its precedent “establishe[d] a free-floating and
categorical liberty interest in marriage . . . sufficient to trigger constitutional protection whenever
a regulation in any way touches upon an aspect of the marital relationship.”2 Id. at 95. Because

2

The Court notably distinguished Turner, a case which Sullivan heavily cites in both his complaint
and objections. Id. at 94 (citing 482 U.S. 78 (1987)). Based on Turner, Sullivan argues that
Defendants’ conduct was “an exaggerated response” and was not reasonably related to “valid
penological interests.” [ECF No. 56 at 5–6; see also ECF No. 22 at 10–12.] The Din Court, however,
found Turner inapplicable because it involved a direct regulation on marriage.
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the Government’s conduct “only indirectly and incidentally” affected the plaintiff’s marriage, it
did not deprive her of a fundamental liberty interest. Id. at 101 (quoting O'Bannon v. Town Court
Nursing Center, 447 U.S. 773, 788 (1980)).
So too here. Based on the alleged facts, the SCDMH employees incidentally touched upon
Sullivan’s potential marriage by denying his transportation request. The agency had no policy
against allowing residents to exercise their right to marry and did not act to prevent his marriage.
See ECF No. 22 at 7. In fact, Sullivan alleges that SVPA officials even told him he could be
married at the treatment facility, so long as his fiancée was an approved visitor and the ceremony
took place in a visitation room. See ECF No. 22 at 5. The court agrees with the Report’s finding
that the named employees did not violate Sullivan’s right to marriage.3
Sullivan objects, stating Din is not “on point for the matter before the court.” [ECF No. 56
at 8.] He notes that the plaintiff seeking a visa there was already married, while Sullivan is
“engage[d] in a separate visa process for permission to marry.” Id. He also distinguishes Din as
involving a direct challenge to a visa denial. Sullivan claims he seeks the “opportunity” to request
a visa and argues Defendants “fatally’ interfered with that “right[].” Id. The court finds these
factual differences immaterial. The Supreme Court crucially found that the Government’s visa
denial did not violate a fundamental liberty interest because it affected a marital relationship only
indirectly. Here, the alleged infringement on Sullivan’s marriage is even more attenuated.
2.

Equal Protection

The court further finds that Sullivan has not alleged an equal protection violation against
the individual Defendants. The Equal Protection Clause of the Fourteenth Amendment “keeps
3

Sullivan objects to the Report’s assertion that he could have married his fiancée at the facility.
Sullivan claims he cannot obtain a marriage license in South Carolina without first attending a visa
appointment. [ECF No. 56 at 6, 9.] Even if true, his claim does not change the court’s conclusion—
namely that Defendants’ actions indirectly affected Sullivan’s ability to marry.
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governmental decisionmakers from treating differently persons who are in all relevant respects
alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). But the Clause “does not take from the States
all power of classification.” Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 271 (1979). “To
succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated
differently from others with whom he is similarly situated and that the unequal treatment was the
result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001).
As the Report notes, Sullivan “has not provided any argument that he has been treated any
differently than any other civilly committed individual” or that his “inability to attend [the]
appointment is the result of discrimination.” [ECF No. 49 at 21.] Sullivan objects to this finding.
He claims the “Equal Protection [Clause] demands Plaintiff should be afforded” the same
treatment “as would any other United States citizen[.]” [ECF No. 56 at 5.] The court rejects his
argument as plainly inconsistent with the applicable law.
Finding no actionable constitutional violation, the court concludes Sullivan is not entitled
to damages or permanent injunctive relief under § 1983 as a matter of law.
III.
Sullivan also requests a preliminary injunction requiring Defendants to (1) transport him
to future USCIS appointments, and (2) create a “grievance policy” for SVPA treatment program
residents which would “include judicial oversight” and allow them to “appeal [SC]DMH decisions
regarding their rights.” [ECF No. 22 at 15.] The Report recommends the court deny Sullivan’s
request. [ECF No. 49 at 22–23.] The court adopts that recommendation.
A preliminary injunction is “an extraordinary remedy involving the exercise of a very farreaching power, which is to be applied only in the limited circumstances which clearly demand

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it.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (citation
omitted). To prevail on a request for preliminary injunctive relief, a plaintiff must demonstrate
that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the
absence of preliminary relief, (3) the balance of the equities tips in his favor, and (4) an injunction
is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
To satisfy the first two prongs, the moving party must make a “clear showing” that he is
likely to succeed at trial, Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013), and that irreparable
harm is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd., 952 F.2d at
812 (citation omitted). Based on the above analysis, the court concludes that Sullivan has made
neither showing. As noted, several Defendants are immune from suit, and the court does not detect
a constitutional violation even where Sullivan can entertain a claim. Additionally, a preliminary
injunction may not prevent the irreparable harm that Sullivan claims will occur—that is, he may
be unable to marry his fiancée even if Defendants are ordered to transport him to his visa
appointment. Sullivan objects that he “believes” the Secretary of the Department of Homeland
Security will grant his fiancée’s visa if he attends a rescheduled appointment. But that decision is
firmly out of this court’s control.4 Thus, Sullivan shows neither a likelihood of success on the
merits nor that an injunction will prevent irreparable harm.
Sullivan also does not prove that the balance of equities points in his favor. In his
objections, Sullivan argues this prong is satisfied because he is prepared to reimburse Defendants
for any travel expenses. [ECF No. 56 at 22.] He thus claims Defendants could execute his
transportation request at minimal costs. Id. But Sullivan does not account for either the logistical
4

The Report notes that USCIS alerted Sullivan he may be ineligible for his requested visa, based on
his offense history. [ECF No. 49 at 15 n.6.] He objects, claiming USCIS did not reach a final
determination on his eligibility. [ECF No. 56 at 12.] Nevertheless, the Report correctly concludes that
Sullivan’s visa approval is not a foregone conclusion.
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costs associated with his travel or the precedential effect of approving his request. Nor does he
discuss the impact of an order requiring SCDMH to create a grievance system with judicial review.
Such an order—if feasible—would not only impose financial costs on SCDMH but would also
require this federal court to mandate the internal affairs of a state agency.
Lastly, Sullivan does he show that a preliminary injunction would serve the public interest.
Though he claims this relief would assure the public “that constitutional rights are enforced,”
Sullivan has not demonstrated a constitutional violation. The court notes that Defendants have
chosen to operate the SVPA treatment program subject to various parameters. Sullivan has not
shown that an order from this court altering those procedures is necessary. The “extraordinary
remedy” of a preliminary injunction is not warranted in this case.
CONCLUSION
For the above reasons, the Report, ECF No. 49, is adopted in its entirety and incorporated
herein.5 Defendants’ motions to dismiss, ECF Nos. 28 and 34, are granted. Plaintiff’s request for
a preliminary injunction, ECF No. 22, is denied.
IT IS SO ORDERED.

March 27, 2024
Columbia, South Carolina

Sherri A. Lydon
United States District Judge

5

To the extent Sullivan’s objections concern portions of the Report not reached by the court, his
objections are overruled. See ECF No. 56 at 4, 16–18.
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