B et al v. Sanford et al
Filing
185
ORDER granting 153 Motion for Summary Judgment. Defendants Sanford and Haley are dismissed from this action. Signed by Honorable Timothy M Cain on 6/13/2012.(pbri, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Peter B., Jimmy “Chip” E.,
and Michelle M.,
Plaintiffs,
v.
Marshall C. Sanford,
Beverly Buscemi, Kelly Floyd,
the South Carolina Department
of Health and Human Services,
the South Carolina Department
of Disabilities and Special
Needs, Nikki Randhawa Haley,
Anthony Keck, and Richard Huntress,
Defendants.
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C/A No. 6:10–767-TMC
OPINION & ORDER
In their Amended Complaint, Plaintiffs seek 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, 1985, and 1988. (Compl. ¶ 6). This matter is before the court on the
Summary Judgment Motion of Defendants Marshall C. Sanford and Nikki Randhawa
Haley, the former and current governors of South Carolina, respectively (referred to
herein as “Defendants”). (Dkt. # 153). Plaintiffs have filed a response opposing the
1
Title XIX of the Social Security Act, 42 U.S.C. §§ 1396–1396v, is known as the
Medicaid Act.
motion and Defendants have filed a reply.2 This motion is now ripe for ruling.
I. Background/Procedural History
Plaintiffs in this action are three individuals who have varying degrees of mental
disabilities and/or physical disabilities. Plaintiff Peter B. is 43 years old and has
moderate mental retardation, hydrocephalus, diabetes, coronary heart disease, an
anxiety disorder, and a history of stress-induced seizures. (Am. Compl. ¶ 34). Chip E.
is 38 years old and has normal intelligence, severe cerebral palsy, and a speech
disorder and he is confined to a wheelchair. (Am. Compl. ¶¶ 85-86). Michelle M. is 37
years old and has profound mental retardation, autism, a seizure disorder, a sleep
disorder, and Parkinson’s disease and is unable to speak. (Am. Compl. ¶¶ 139-140).
Plaintiffs participate in a Medicaid waiver program for persons with Mental
Retardation/Related Disabilities (“MR/RD waiver”). (Am. Compl. ¶ 31).3 The MR/RD
waiver program permits the federal government to waive the requirement that certain
disabled persons must live in an institution in order to receive services funded by
Medicaid. 42 U.S.C. § 1396n(c).
2
The court notes that Plaintiffs’ Memorandum in Opposition to Defendants’
Motion is thirty-five pages in length. Plaintiffs did not seek the court’s permission to
exceed the fifteen-page limit provided in Local Civil Rule 7.05 (B)(2) DSC. The court
accepts the memorandum, but admonishes counsel to abide by the rules in future
filings.
3
As noted in one of the amicus memorandum filed in this action, the terms
“intellectual disability” and “person with intellectual disability” are being substituted in
state law for “mentally retardation” and “mentally retarded,” respectively. (Dkt. # 174).
Thus, the reference to this waiver as MR/RD is in the process of being replaced by
Intellectual Disabilities and Related Disabilities waiver or ID/RD waiver. 2011 South
Carolina Laws Act No. 47 (eff. June 7, 2011). However, 42 U.S.C. § 1396n(c) and
various other federal laws and regulations still use the nomenclature “mental
retardation.” The court will continue to use the MR/RD terminology which was in effect
at the time this case was filed and was used by the parties in their pleadings and
memoranda.
2
Medicaid is a cooperative federal-state program designed to furnish medical
assistance to persons “whose income and resources are insufficient to meet the costs
of necessary medical services.”
42 U.S.C. § 1396. The Centers for Medicare and
Medicaid Services (“CMS”) administers the program on behalf of the Secretary of the
United States Department of Health and Human Services. While states are not required
to participate in Medicaid, all of them do. Ark. Dep't of Health & Human Servs. v.
Ahlborn, 547 U.S. 268, 275 (2006). Once a state chooses to participate in the Medicaid
program, it must comply with the federal statutory and regulatory scheme. Harris v.
McRae, 448 U.S. 297, 301 (1980).
Each state’s Medicaid plan must specify a single state agency designated to
administer the Medicaid plan, and no other state agency can possess or be delegated
discretion over the administration 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). SCDHHS is headed by a Director appointed by the Governor. S.C.
Code Ann. § 44-6-10.
The South Carolina Department of Disabilities and Special Needs (“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. 4421-10. 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.
The majority of SCDDSN’s funding comes through SCDHHS from the Medicaid
program. SCDHHS contracts with the SCDDSN to operate the MR/RD waiver program.
3
When an individual in South Carolina applies for DDSN
services, including the waiver program, DHHS first
determines whether the individual is eligible for Medicaid
funding. Thereafter, DDSN determines whether the individual
is eligible for DDSN services and, if so, what “level of care”
the individual requires. To be given the option under the
waiver program of receiving services at home or in the
community, rather than in an institution, individuals must first
qualify for the Intermediate Care Facility for the Mentally
Retarded (“ICF/MR”) level of care-that is, they must meet the
criteria necessary to reside in an institution like a nursing
home. If approved, waiver services are provided in a variety
of settings including, in order of restrictiveness: (1) a
Supervised Living Program II (“SLP II”), an apartment where
recipients of DDSN services live together; (2) a Community
Training Home I (“CTH I”), a private foster home where a
recipient of DDSN services resides with a family, one
member of whom is a trained caregiver; and (3) a
Community Training Home II (“CTH II”), a group home with
live-in caregivers for four or fewer recipients of DDSN
services.
Doe v. Kidd, 501 F.3d 348, 350 (4th Cir. 2007).
Plaintiffs allege Defendants have reduced or eliminated services provided to
them under the MR/RD waiver program and that this diminution in services will force
them into institutions in violation of Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581
(1999). In Olmstead, the Supreme Court held that the “unjustified institutional isolation
of persons with disabilities is a form of discrimination” prohibited by the ADA. Id. at
2187. The Supreme Court stated:
States are required to provide community-based treatment
for persons with mental disabilities when the State's
treatment professionals determine that such placement is
appropriate, the affected persons do not oppose such
treatment, and the placement can be reasonably
accommodated, taking into account the resources available
to the State and the needs of others with mental disabilities.
Id. at 2190.
Plaintiffs seek declaratory and injunctive relief finding Defendants have violated
the ADA, Section 504 of the Rehabilitation Act, and the Medicaid Act, prohibiting the
4
Defendants from reducing MR/RD Medicaid waiver services, and requiring Defendants
to restore all services which were reduced or eliminated. (Am. Compl. ¶¶ 316-318).
Further, Plaintiffs seek an order requiring “Defendants to provide all home and
community based services which are determined by participants’ responsible treating
physicians to be medically necessary, so long as the cost of these services is less than
the cost of their care in a Regional Center, except where the orders of the treating
physician involve Medicaid fraud or are outside of the reasonable standards of medical
care, as determined by responsible and unbiased medical professionals.” (Am. Compl.
¶ 319). Finally, Plaintiffs seek an order declaring that Defendants Sanford, Haley, Keck,
Floyd, Huntress, and Buscemi denied Plaintiffs’ civil rights in violation of 42 U.S.C. §§
1983 and 1988. (Am. Compl. ¶ 321).4
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of
demonstrating that summary judgment is appropriate; if the movant carries its burden,
then the burden shifts to the non-movant to set forth specific facts showing that there is
a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a
movant asserts that a fact cannot be disputed, it must support that assertion either by
“citing to particular parts of materials in the record, including depositions, documents,
4
Originally, Plaintiffs asserted three claims against Sanford pursuant to: 1) Title II
of the ADA; 2) Section 504 of the Rehabilitation Act, and 3) Section 1983 for violations
of the ADA and the Rehabilitation Act. The court dismissed all of these claims against
Sanford. At that time, however, Sanford was not dismissed as a defendant because
Plaintiffs had sought to file an Amended Complaint to include new claims under the
Medicaid Act and § 1983. The court did not rule on whether these new claims should
also be dismissed because the claims were not properly before the court at that time.
5
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials;” or “showing . . . that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is
deemed “material” if proof of its existence or non-existence would affect disposition of
the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of material fact is “genuine” if the evidence offered is such that a
reasonable jury might return a verdict for the non-movant. Id. at 257. In determining
whether a genuine issue has been raised, the court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of
the non-movant’s position is insufficient to withstand the summary judgment motion.
Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more,
are insufficient to preclude the granting of the summary judgment motion. Ross v.
Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.
Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248.
III. Discussion
As set forth above, Plaintiffs contend Defendants have reduced certain in-home
and community based personal health services and this reduction will force them into
6
institutional settings, in violation of the holding in Olmstead. Plaintiffs allege four causes
of action: 1) Violations of the ADA against Defendants Keck, Buscemi, Floyd, Huntress,
SCDHHS, and SCDDSN; 2) Violations of Section 504 of the Rehabilitation Act against
Defendants Keck, Buscemi, Floyd, Huntress, SCDHHS, and SCDDSN; 3) Violations of
the Medicaid Act against all individual and agency Defendants; and 4) Violations of
Sections 1983 and 1988 against individual Defendants Sanford, Haley, Keck, Buscemni,
Flord, and Huntress. (Am. Compl. ¶¶ 248-302). Plaintiffs state that are suing Defendant
Sanford only in his individual capacity and Defendant Haley only in her official capacity.
(Am. Compl. ¶¶ 11, 18).5
The court notes that only the last two causes of action are
alleged against the moving Defendants Sanford and Haley.6
1. Sovereign Immunity
Defendants contend that Plaintiffs’ claims against them regarding violations of
the Medicaid Act are barred by the Eleventh Amendment. The Eleventh Amendment
bars suits against a State in federal court.7 However, Eleventh Amendment immunity is
5
Plaintiffs originally sued then Governor Sanford in both his official and individual
capacities. During the pendency of this action, Haley succeeded Sanford as governor.
Therefore, pursuant to Rule 25 (d)(1), Fed.R.Civ.P., in regard to only the official
capacity claims, Governor Haley was substituted for former Governor Sanford in the
Amended Complaint. Fed.R.Civ.P. 25(d)(1) (providing “[w]hen a public officer is a party
to an action in his official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action does not abate and the officer's successor is
automatically substituted as a party.”). Sanford remained a party only in his individual
capacity. (See Dkt. # 106 - Court’s Order discussing automatic substitution of parties).
6
As noted, the court previously dismissed the ADA and Section 504
Rehabilitation Act claims against Defendant Sanford. (Dkt. # 93).
7
The Eleventh Amendment provides:
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.
7
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. 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).
Defendants Sanford and Haley do not dispute that the Ex Parte Young doctrine
allows a plaintiff to sue a state official in his official capacity for prospective injunctive
relief. (Defs.’ Reply Mem. at 2). Rather, these Defendants argue that Ex Parte Young
does not apply in this case because the governors did not have the requisite connection
to the enforcement of the pertinent Medicaid provisions. Id. at 7.
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
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
U.S. CONST. amend. XI.
8
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.
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. Waste Mgmt.
Holdings, 252 F.3d at 331. Further, the power to make appointments to agency boards
is insufficient, even coupled with general enforcement duties and veto/approval powers
to establish that a state official falls under the exception set forth in Ex parte Young.
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). See also 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) (dismissing claim against Governor who signed allegedly
unconstitutional bill into law and appointed the cabinet official responsible for enforcing
that law).
Here, in regard to the alleged Medicaid violations, Plaintiffs contend that
Defendants violated their rights under 42 U.S.C. § 1396, by failing to provide services
with reasonable promptness and sufficiency, employ reasonable standards, allow
choice of provider, provide equal access, and assure that the health and welfare of all
participants are protected.
(Am. Compl. ¶ 296).
9
Plaintiffs also allege Defendants
violated their due process rights under 42 C.F.R. § 431.210 by failing to provide a
hearing, notice, legitimate reasons for attempting to reduce services, and citation to
specific regulations supporting a reduction. (Am. Compl. ¶¶ 290; 292). The hearing
and notice requirements set forth in 42 C.F.R. § 431 are placed upon the state Medicaid
agency and not the governor. 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. Therefore, as a practical matter, to impose an
injunction on the governor to cure any alleged problems based on 42 C.F.R. § 431 or 42
U.S.C. § 1396 would have no real effect.
Moreover, while the Governor of South
Carolina has the power to appoint and general supervisory authority, as noted above,
neither appointment power nor general supervisory power over persons responsible for
enforcing a challenged provision will subject an official to suit. L.A. County Bar Ass'n v.
Eu, 979 F.2d 697, 704 (9th Cir.1992) (citations omitted); LensCrafters, Inc. v. Sundquist,
184 F. Supp. 2d at 757-59.
The court finds that Plaintiffs’ allegations against Defendants Sanford and Haley
are not sufficient to meet the requirements of the exception espoused in Ex parte
Young. Accordingly, they should be dismissed in their official capacities.8
8
Again, as the court has noted, Plaintiffs specifically state that Defendant Sanford
is named only his individual capacity. (Am. Compl. ¶ 11). However, some allegations in
the Amended Complaint could be construed as claims against Defendant Sanford in his
official capacity. (See e.g. Am. Compl. ¶ 12). Therefore, out of an abundance of
caution, the court has included Defendant Sanford, to the extent that he is named in his
official capacity as to any claim, in its discussion of Eleventh Amendment immunity.
10
2. Section 1983 Claims against Defendant Sanford9
In Count IV, Plaintiffs allege a “violation of 42 U.S.C. §1983" against the
“individual Defendants,” specifically defined to include Defendants Sanford and Haley.10
In order to state a claim under § 1983, Plaintiffs must allege that the conduct of which
they complain was committed by a person acting under the color of state law and that
the conduct deprived them of rights, privileges, or immunities secured by the
Constitution or laws of the United States. 42 U.S.C. § 1983. See, e.g., West v. Atkins,
487 U.S. 42, 48 (1988). Plaintiffs allege the individual Defendants acted in concert to
violate Plaintiffs’ due process rights under the Fourteenth Amendment by denying
Plaintiffs a fair hearing, as required by 42 C.F.R. § 431.205, and by failing to render a
9
Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured. . . . .
“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred’ . . . [t]he first step in [analyzing] any
such claim is to identify the specific [federal] right allegedly infringed.” Albright v. Oliver,
510 U.S. 266, 271 (1994) (citation omitted) (quoting Baker v. McCollan, 443 U.S. 137,
144 n. 3 (1979)). In this count, Plaintiffs also assert violations of 42 U.S.C. § 1988. The
court will not discuss § 1988 because it merely provides for attorneys' fees in actions
brought pursuant to § 1983, § 1985, and § 1986 and does not, itself, provide an
independent cause of action.
10
Plaintiffs’ references to the “individual” Defendants should not be construed as
claims against Defendant Haley in her individual capacity. The court reiterates that
Plaintiffs specifically state Defendant Haley is being sued only in her official capacity
(Am. Compl. ¶ 18) and the court has already determined that she should be dismissed
based upon Eleventh Amendment immunity. However, even if Plaintiffs alleged such a
claim against Defendant Haley, it would be dismissed as there are no allegations to
support such a claim.
11
final decision within ninety days of the receipt of a request for a hearing, as required by
42 C.F.R. § 431.221. (Am. Compl. ¶ 305). Additionally, Plaintiffs allege Defendants
violated their rights under the Medicaid Act by diverting funds under the guise of budget
reductions and the Supremacy Clause11 by implementing state agency policies which
conflict with the directives of the Medicaid Act and the Constitution. (Am. Compl. ¶¶
304; 306). Plaintiffs seek an order declaring their rights under the Medicaid Act and an
award of fees, costs, and expenses. (Am. Compl. ¶¶ 313-314).
Reviewing the factual allegations in the Amended Complaint against Sanford,
Plaintiffs allege that Sanford “was responsible for directing, supervising and controlling”
SCDHHS and all long term care programs for disabled persons. (Am. Compl.¶ 11).
Plaintiffs allege Sanford exceeded the authority of the governor’s office by causing the
diversion of funds which were to be used to provide services to Plaintiffs and other
disabled persons. (Am. Compl. ¶ 13). Plaintiffs allege Sanford was informed about
alleged civil rights violations, violations of the Medicaid Act, and misappropriation of
funds, but failed to correct or prevent these problems. (Am. Compl. ¶ 14). Further,
Plaintiffs allege Sanford refused to appoint three consumer advisory boards as required
by S.C. Code Ann. § 44-20-225. (Am. Compl. ¶ 17). Finally, Plaintiffs allege Sanford
ignored reports of financial mismanagement and prevented public review of the actions
taken by SCDDSN. (Am. Compl. ¶ 17).
As stated above, the hearing and notice requirements set forth in 42 C.F.R. §
431 are placed upon the state Medicaid agency and not the governor. Thus, the
decision not to afford Plaintiffs notice or a hearing resides with SCDHHS and not the
Governor. Furthermore, there are no allegations that Sanford knew or acquiesced in
11
The Supremacy Clause provides that “the Laws of the United States . . . shall
be the supreme Law of the Land. . . .” U.S. CONST. art. VI, cl. 2.
12
the deprivation of hearings or notice. Likewise, decisions regarding Plaintiffs’ Medicaid
services were not made by the Governor.
Other than the allegation that he diverted funds, Plaintiffs have not alleged that
Defendant Sanford was personally involved in reducing their Medicaid services. Rather,
Plaintiffs merely assert that Sanford had supervisory responsibilities over those persons
who did commit the alleged acts. However, there is no respondeat superior liability
under § 1983. See Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978); see also
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1997). Instead, “liability will lie where it is
affirmatively shown that the official charged acted personally in the deprivation of the
plaintiff's rights.” Vinnedge, 550 F.2d at 928.
In Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009), the Supreme Court held that
allegations of unconstitutional violations involving discrimination require a showing of
discriminatory intent by each defendant and held that “the term ‘supervisory liability’ is a
misnomer.” In Iqbal, a Pakistani Muslim was arrested on criminal charges in New York
City shortly after the September 11, 2001, terrorist attacks and detained by federal
officials under restrictive conditions. Id. at 1942. Iqbal sued pursuant to § 1983, alleging
that he had been unconstitutionally mistreated because of policies put in place by
various government officials, including then-Attorney General John Ashcroft and
Federal Bureau of Investigation Director Robert Mueller. Id. Because vicarious liability
is inapplicable to Bivens suits, the court held that a plaintiff must “plead that each
Government-official defendant, through the official's own individual actions, has violated
the Constitution,” rather than assert that the higher-ranking officials were subject to
supervisory liability. Id. at 1948. The Court held:
Respondent's conception of “supervisory liability” is inconsistent
with his accurate stipulation that petitioners may not be held accountable
for the misdeeds of their agents. In a § 1983 suit or a Bivens
13
action—where masters do not answer for the torts of their servants—the
term “supervisory liability” is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or
her own misconduct. In the context of determining whether there is a
violation of clearly established right to overcome qualified immunity,
purpose rather than knowledge is required to impose Bivens liability on the
subordinate for unconstitutional discrimination; the same olds true for an
official charged with violations arising from his or her superintendent
responsibilities.
Id.
The dissent in Iqbal opined that “[l]est there be any mistake, in these words the
majority is not narrowing the scope of supervisory liability; it is eliminating [ ] supervisory
liability entirely.” Id. at 1957 (Souter, J., dissenting).12 Accordingly, Sanford is not liable
under § 1983 based upon Plaintiffs’ allegations of supervisory liability.
As to Plaintiffs’ allegations that Sanford diverted funds when he voted to approve
SCDDSN’s purchase of real estate, this allegation also does not establish liability
against Sanford in his individual capacity under § 1983 for two reasons. First, as pointed
out by the Defendants, SCDDSN sought approval for this real estate purchase to use
excess debt service funds. Debt service funds for SCDDSN were established pursuant
to S.C. Code Ann. § 44-20-1170 to pay for capital improvement projects. If there is
excess money in this fund, § 44-20-1170 (B) provides that the State Budget and Control
Board may approve the transfer of the excess funds “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.” The approval of the purchase of the real estate
did not divert funds which could have been used to provide services to Plaintiffs.
12
Even if the Court did not entirely eliminate the concept of supervisory liability in
§ 1983 cases, the allegations in the Amended Complaint in this case fail to establish
liability on such a theory based on prior Fourth Circuit precedent. See Carter v. Morris,
164 F.3d 215, 221 (4th Cir.1999); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994)
(outlining the requirements to hold a supervisor liable for constitutional injuries inflicted
by their subordinates).
14
Second, the court finds Sanford is entitled to legislative immunity. 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 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 55-56.13
Moreover, a number of United States Courts of Appeals have specifically applied
the doctrine of legislative immunity to state governors. See e.g. Empress Casino Joliet
Corp. v. Blagojevich, 638 F.3d 519, 529 (7th Cir. 2011) (finding governor was entitled to
absolute immunity in regard to allegations that he “took bribes in exchange for
influencing the state legislature to pass the Racing Acts and for signing the Acts into
law”); Baraka v. McGreevey, 481 F.3d 187, 200-02 (3d Cir. 2007)(holding that Governor
of New Jersey was entitled to legislative immunity when he recommended that the state
legislature repeal the position of State Poet Laureate and signed the repeal into law);
Torres-Rivera v. Calderon-Serra, 412 F.3d 205, 213 (1st Cir. 2005)(holding “a governor
who signs into law or vetoes legislation passed by the legislature is also entitled to
absolute immunity for that act.”); Women's Emergency Network v. Bush, 323 F.3d 937,
13
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).
15
950 (11th Cir. 2003)(“Under the doctrine of absolute legislative immunity, a governor
cannot be sued for signing a bill into law.”). “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.
In a case similar to the instant action, Lewis v. N.M. Dep't of Health, 275
F.Supp.2d 1319 (D.N.M. 2003), the court addressed whether the former New Mexico
Governor was entitled to legislative immunity when the plaintiffs alleged violations of the
Medicaid Act and the ADA, and where the plaintiffs asserted that “they were entitled to
less restrictive home and community-based services with ‘reasonable promptness'
instead of the institutional care they were receiving.” Id. at 1323. The court found the
governor was entitled to legislative immunity, noting that the “[p]laintiffs' allegations
regarding Defendant Governor Johnson's actions, either directly or indirectly, concern
what they perceive to be inadequate funding and support” for the services they desired.
Id. at 1326. The court explained that “funding for any state program is a budgetary and
policy decision for the state to make,” and asserted that the governor’s “actions in
preparing a budget are an integral part of the legislative process.” Id. at 1327 (internal
quotations omitted). Here, voting to approve SCDDSN’s purchase of real estate with
excess debt service funds was clearly legislative action. Moreover, the court in Lewis
concluded that the governor’s pronouncement of policy objectives and advice to state
officials that the growth of particular programs should be limited was also “legislative in
nature.” Id. at 1327-28. Likewise, here, many of Plaintiffs’ allegations against Sanford
are based on Sanford's positions and policies and how he acted as Governor from a
policy standpoint and not his personal involvement regarding this § 1983 action.
Accordingly, he is entitled to legislative immunity.
Finally, even if the court could award Plaintiffs injunctive relief against Sanford in
16
his individual capacity, the requested injunctive relief is improper.
Plaintiffs’ §1983
claims against Sanford involve allegations regarding Sanford’s past conduct when he
was governor.
As Defendant Sanford is now currently a private citizen, he is not
involved in any ongoing constitutional deprivations and he could not provide Plaintiffs,
should they prevail, with the injunctive relief they seek. The undisputed fact is that he
would have absolutely no role to play in regard to providing Plaintiffs with any
prospective relief. In addition to legislative immunity, because Plaintiffs fail to allege any
personal involvement on the part of Sanford and fail to make any allegations which
reveal the presence of the required elements for supervisory liability, Sanford should be
granted summary judgment on the § 1983 claims alleged against him.14
IV. Conclusion
Based on the foregoing, Defendants’ Summary Judgment Motion (Dkt. # 153) is
GRANTED and Defendants Sanford and Haley are dismissed from this action.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
June 13, 2012
14
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). (Pls.’ Mem. at 31). 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.
17
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