Timpson et al v. Haley et al

Filing 113

OPINION AND ORDER denying 66 Motion to Dismiss; granting in part and denying in part 78 Motion to Substitute Party; denying 82 Motion for Protective Order; holding in abeyance 105 Motion for Protective Order. Signed by Honorable Mary Geiger Lewis on 8/24/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
JOHNNY TIMPSON, by and through his
Conservator Sandra Timpson; and SANDRA
TIMPSON, in her individual capacity,
Plaintiffs,

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vs.
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NIKKI HALEY, Governor of the State of
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South Carolina; ANDERSON COUNTY
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DISABILITIES AND SPECIAL NEEDS
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BOARD; HORACE PADGETT, Chairman of §
the Anderson County Disabilities and Special §
Needs Board; DALE THOMPSON, former
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Executive Director of the Anderson Disabilities §
and Special Needs Board; JOHN KING,
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Current Director of the Anderson Disabilities §
and Special Needs Board; SOUTH
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CAROLINA DEPARTMENT OF
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DISABILITIES AND SPECIAL NEEDS;
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WILLIAM DANIELSON, Chairman DDSN
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Commission; BEVERLY BUSCEMI, Director §
of the South Carolina Department of
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Disabilities and Special Needs; SOUTH
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CAROLINA DEPARTMENT OF HEALTH
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AND HUMAN SERVICES; CHRISTIAN
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SOURA, Director of the South Carolina
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Department of Health and Human Services;
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GREENVILLE COUNTY DISABILITIES
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AND SPECIAL NEEDS BOARD;
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UNKNOWN ACTORS at the Anderson
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Disabilities and Special Needs Board;
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UNKNOWN ACTORS at the Greenville
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County Disabilities and Special Needs Board §
and/or Thrive Upstate; TYLER REX, Director §
of the Anderson DSN Board; ALEXANDER §
MCNAIR, Chairman of the Board of Thrive
§

CIVIL ACTION NO. 6:16-1174-MGL

Upstate, formerly known as the Greenville
County Disabilities and Special Needs Board;
JOHN COCCIOLONE, Director of Thrive
Upstate; UNKNOWN ACTORS at the South
Carolina Department of Health and Human
Services; UNKNOWN ACTORS at the
Department of Disabilities and Special Needs;
and THRIVE UPSTATE,
Defendants.

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§
§
§
§
§
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§

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT HALEY’S MOTION TO DISMISS,
GRANTING IN PART AND DENYING IN PART
DEFENDANT HALEY’S MOTION TO SUBSTITUTE,
DENYING DEFENDANT HALEY’S MOTION FOR A PROTECTIVE ORDER,
AND HOLDING IN ABEYANCE INTERESTED PARTY THE UNITED STATES’
MOTION FOR A PROTECTIVE ORDER
I.

INTRODUCTION
In this action, Plaintiffs complain of Defendants’ alleged violations of: the South

Carolina Tort Claims Act, § 15-78-210; the federal Americans with Disabilities Act (ADA), 42
U.S.C. § 12188; the federal Rehabilitation Act, 29 U.S.C. § 794(a); the South Carolina
Administrative Procedures Act, S.C. Code Ann. § 1-23-310; the South Carolina Constitution
separation of powers doctrine, S.C. Const. art. I, § 8; and 42 U.S.C. § 1983. The Court has
jurisdiction over the matter under 28 U.S.C. §§ 1331 and 1367(a).
The matter is before the Court for its consideration of Defendant Nikki Haley’s motion to
dismiss the action against her as per Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Haley’s motion to
substitute party, Haley’s motion for a protective order, and Interested Party the United States of
America’s motion for a protective order. Having reviewed the motions, the record, and the
applicable law, it is the opinion of the Court Haley’s motion to dismiss will be denied, Haley’s
motion to substitute party will be granted in part and denied in part, Haley’s motion for

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protective order will be denied, and the United States’ motion for a protective order will be held
in abeyance.

II.

FACTUAL AND PROCEDURAL HISTORY
The facts and allegations that are the basis of this lawsuit are well known by the parties.

The Court, thus, need not recite them here.
After Plaintiffs filed their amended complaint, Haley filed a motion to dismiss.
Subsequent to Haley being confirmed to be the United States Ambassador to the United Nations,
she filed a motion to substitute current Governor Henry McMaster in her place. Haley and the
United States have also each filed separate motions for protective orders.
Having been fully briefed on the relevant issues, the Court is prepared to adjudicate each
of these motions.

III.

HALEY’S MOTION TO DISMISS
A. Standard of Review
A motion to dismiss under Rule 12(b)(1) raises the fundamental question of whether a

court is competent to hear and adjudicate claims. “Federal courts are courts of limited subject
matter jurisdiction, and as such there is no presumption that the court has jurisdiction.” Pinkley,
Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). Unless a matter involves an
area of a federal court’s exclusive jurisdiction, a plaintiff may bring suit in federal court only if
the matter involves a federal question arising “under the Constitution, laws or treatises of the
United States,” 28 U.S.C. § 1331, or if “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between citizens of different states,” 28 U.S.C.
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§ 1332(a)(1). In reviewing a motion to dismiss under Rule 12(b)(1), the court is to “regard the
pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
The purpose of a Rule 12(b)(6) motion, on the other hand, “is to test the sufficiency of a
complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a
motion to dismiss, the Federal Rules of Civil Procedure require a complaint contain “a short and
plain statement of the claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Rule
8(a) does not require “detailed factual allegations,” but “more than an unadorned, the-defendantunlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)), to “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (quoting Conley v.
Gibson, 255 U.S. 41, 47 (1957)). A claim is considered facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
In considering a motion to dismiss, a plaintiff’s well-pled allegations are taken as true,
and the complaint and all reasonable inferences are liberally construed in the plaintiff’s favor.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Court may consider only
the facts alleged in the complaint, which may include any documents either attached to or
incorporated in the complaint, and matters of which the Court may take judicial notice. Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept
the plaintiff’s factual allegations as true, any conclusory allegations are unentitled to an
assumption of truth, and even those allegations pled with factual support need to be accepted
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only to the extent “the plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. In
sum, the factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption all the allegations in the complaint are true, even if doubtful in fact.
Twombly, 550 U.S. at 555.
B. Contentions of the Parties
In Haley’s motion to dismiss, she avers the tort claims leveled against her are barred by
the statute of limitations. Haley also maintains, as the then-Governor of South Carolina, she is
not a proper defendant in this lawsuit because she had neither control nor enforcement rights
over the state agencies, the State’s Department of Disabilities and Special Needs and
Department of Health and Human Services, which were responsible for Johnny Timpson’s care.
Haley further enounces, as the then-Governor, inasmuch as she was without personal and
individual involvement in Johnny Timpson’s case or care, she is an improper defendant as to
Plaintiffs’s § 1983 claims.
Plaintiffs dispute each of Haley’s claims.
C. Discussion and Analysis
First, Haley argues Plaintiffs’ claims under the South Carolina Tort Claims Act are
barred by its two-year statute of limitations. The Court disagrees.
Johnny Timpson’s injuries occurred in 2013. Plaintiffs waited until 2016 to file their
complaint. The Tort Claims Act states “any action brought pursuant to this chapter is forever
barred unless an action is commenced within two years after the date the loss was or should have
been discovered.” S.C. Code Ann. § 15-78-10. But, as Plaintiffs note, the South Carolina
Supreme Court has opined, in light of S.C. Code Ann. § 15-3-40 (giving one with a mental
disability up to an additional five years beyond the statute of limitations to file an action), “an
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insane plaintiff would apparently have seven years from discovery to bring a negligence action
under the Tort Claims Act.” Harrison v. Bevilacqua, 580 S.E.2d 109, 115 n.5 (2003).
As Timpson suffers from mental disabilities that require constant care, Plaintiffs’
complaint is subject to the five-year extension of the statute of limitations. Thus, the Court will
deny this portion of Haley’s motion to dismiss.
Second, Haley contends she is an improper defendant to this action because Plaintiffs
implicated her only in her position as the then-Governor of the state. Haley argues she is
insulated from liability for the purported misdeeds of state agencies that provided services to
Johnny Timpson inasmuch as she lacked control or enforcement rights over those agencies. The
Court is unpersuaded.
Plaintiffs allege Haley possessed personal knowledge of systemic abuse, neglect, and
exploitation of mentally disabled adults such as Timpson, failed to take reasonable action to
protect them, and even retaliated against those who complained. In that the Court must accept
Plaintiffs’ allegations as true when considering Haley’s motion to dismiss, the Court must deny
this section of Haley’s motion, too.
Third, Haley states, because Plaintiffs failed to allege she was personally or individually
involved in Johnny Timpson’s care or case and inasmuch as respondeat superior is inapplicable
to Plaintiffs’ § 1983 claims, the Court must dismiss those claims against her. The Court is
unconvinced.
Plaintiff have set forth specific allegations of Haley’s active participation in wrongful
conduct violative of Johnny Timpson’s constitutional rights.

Consequently, it would be

improper for the Court to grant Haley’s request for dismissal of Plaintiffs’ § 1983 claims at this
stage of the proceedings.
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IV.

HALEY’S MOTION TO SUBSTITUTE
A. Standard of Review
Rule 25 of the Federal Rules of Civil Procedure states “[a]n action does not abate when a

public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending.” Fed. R. Civ. P. 25(d). Instead, “[t]he officer’s successor is
automatically substituted as a party. Later proceedings should be in the substituted party’s
name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The
[C]ourt may order substitution at any time, but the absence of such an order does not affect the
substitution.” Id.
B. Contentions of the Parties
In Haley’s motion to substitute parties, she contends she is no longer a proper defendant
in this lawsuit because she is no longer Governor of South Carolina. She maintains, in that she
was sued in her official capacity by Plaintiffs, current Governor Henry McMaster should be
substituted in her place in this action.
Plaintiffs agree McMaster should be substituted for Haley as to any claims levied against
her in her official capacity as governor. Plaintiffs, however, dispute they sued her just in her
official capacity.
C. Discussion and Analysis
The parties agree McMaster should be substituted for Haley for any allegations made
towards Haley in her official capacity in the office of the Governor. McMaster, however, is
unable to be substituted for Haley as to the allegations against her individually. Consequently,
the Court will grant this motion in part and deny it in part.

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V.

HALEY’S MOTION FOR A PROTECTIVE ORDER
A. Standard of Review
The propriety of entering a protective order is committed to the sound discretion of the

trial court. Fonner v. Fairfax Cty., 415 F.3d 325, 330 (4th Cir. 2005). “[A] district court has
wide latitude in controlling discovery and that its rulings will not be overturned absent a showing
of clear abuse of discretion. The latitude given the district court extends as well to the manner in
which it orders the course and scope of discovery.” Ardrey v. United Parcel Serv., 798 F.2d 679,
682 (4th Cir. 1986) (citations omitted).
B. Contentions of the Parties
Haley asks the Court to enter a protective order disallowing Plaintiffs’ counsel to depose
her because, according to her, she is an improper defendant in this action. Plaintiffs disagree.
C. Discussion and Analysis
As provided above, the Court is of the opinion Haley has failed to establish she is an
improper party to this lawsuit. Hence, the Court will deny her motion and order she make
herself available to being deposed by Plaintiffs’ counsel within sixty days of the filing of this
Order.

VI.

THE UNITED STATES’ MOTION FOR A PROTECTIVE ORDER
A. Contentions of the Parties
The United States seeks a protective order to prevent the depositions of two employees of

the United States Department of Health and Human Services (DHHS), Centers for Medicare
and Medicaid Services, Ms. Jackie Glaze and Ms. Kenni Howard. It also seeks to block further
production of documents pursuant to what, according to it, is a vague document request that is
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unduly burdensome.
B. Standard of Review
“A person suffering legal wrong because of an agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review
thereof.” 5 U.S.C. § 702. “The reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. § 706(2)(A).
Request for testimony by a DHHS employee in his or her official capacity must “state the
nature of the requested testimony, why the information sought is unavailable by other means,
and the reasons why the testimony would be in the interest of the DHHS or the federal
government.” 45 C.F.R. § 2.4(a). A federal employee may not be compelled to obey a subpoena
contrary to his federal employer’s instructions under valid agency regulations. Boron Oil Co. v.
Downie, 873 F.2d 67, 69 (4th. Cir. 1989).
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.
Civ. P. 26(b)(1).

Deliberative process privilege protects “documents reflecting advisory

opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975).

This rule is designed to protect internal communications between
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governmental officials and to encourage open and frank discussions of policy issues. Dep’t of
the Interior v. Klamath Waters Users Protective Ass’n, 532 U.S. 1, 8-9 (2001). The burden is on
the government to demonstrate the applicability of the privilege.

Rein v. U.S. Patent &

Trademark Office, 552 F.3d 353, 366 (4th Cir. 2009).
C. Discussion and Analysis
Simply put, having exhaustively reviewed the arguments of both the United States and
Plaintiffs, it appears to the Court Plaintiffs’ discovery requests to the United States are somewhat
vague and unduly burdensome, but the United States’ objections go further than they ought.
The Court is well aware of the excellent reputations both Plaintiffs’ counsel and local
counsel for the United States enjoy, both with the bench and the bar. As such, it is confident
they will be able to work out this matter without further Court intervention. Accordingly,
counsel shall conference and then submit to the Court a joint status report not later than
Wednesday, August 30, 2017, stating whether they have resolved this dispute.

VI.

CONCLUSION
In light of the foregoing discussion, Haley’s motion to dismiss is DENIED, Haley’s

motion to substitute party is GRANTED IN PART AND DENIED IN PART, Haley’s motion
for a protective order is DENIED, and the United States’ motion for a protective order is HELD
IN ABEYANCE.
As stated above, Haley shall make herself available to being deposed by Plaintiffs’
counsel within sixty days of the filing of this Order; and counsel for Plaintiffs and the United
States shall conference and then submit to the Court a joint status report not later than
Wednesday, August 30, 2017, stating whether they have resolved the United States’s motion for
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a protective order. As to any request for attorneys’ fees and costs, each party shall bear their
own.
Further, not later than Thursday, August 31, 2017, the parties shall conference and then
submit to the Court a joint consent amended scheduling order for this action.
IT IS SO ORDERED.
Signed this 24th day of August, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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