Timpson et al v. Haley et al

Filing 179

OPINION AND ORDER granting summary judgment for Defendant Haley. as to all claims purportedly made against her in her individual capacity. Defendant Haley's 133 MOTION for Clarification or, Alternatively, Other Relief, and Motion to Stay is found as moot. Further, the Court lifts the stay of its prior deadlines in this case and directs the parties to confer and provide the Court with a Final Amended Scheduling Order within ten days of this Order. Nikki Haley terminated. Signed by Honorable Donald C Coggins, Jr on 6/26/2018. (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,
)
)
v.
)
)
Nikki Haley, et al.,
)
)
Defendants. )
________________________________ )

C/A No. 6:16-cv-1174-DCC

OPINION AND ORDER

This matter comes before the Court upon Defendant Nikki Haley’s Motion for
Clarification, or Alternatively, for Other Relief, and Motion to Stay, ECF No. 133. The
Motion has been briefed and is ripe for consideration.
BACKGROUND
Plaintiffs allege violations of numerous state and federal statutes related to the
implementation and administration of South Carolina’s Medicaid Program.

In the

Amended Complaint, Plaintiffs name a number of defendants, including “Nikki Haley,
Governor of the State of South Carolina.” ECF No. 41.
On January 3, 2017, Defendant Nikki Haley, Governor of the State of South
Carolina, filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
and (6), in which she asked the Court to dismiss the action against her because, inter
alia, Governor Haley is not a proper defendant because “[t]here is no allegation that the
Governor was personally or individually involved in the Plaintiff’s care or case.” ECF No.
66 at 3. Thereafter, on February 16, 2017, following Defendant Haley’s confirmation as

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Ambassador to the United Nations but prior to her scheduled deposition, she “move[d]
that she be removed as a party Defendant and her successor, Governor Henry McMaster,
be substituted as a party Defendant.” ECF No. 78 at 2. Plaintiffs filed a response, in
which they acknowledged that Governor Henry McMaster should automatically be
substituted for the claims against Defendant Haley in her official capacity, but stated that
they “are entitled to take the deposition of Nikki Haley1 to establish facts alleged in their
amended complaint and to determine whether she may be liable, in her individual
capacity, for any of the claims alleged in the amended complaint.” ECF No. 80 at
1–2 (emphasis added).
In response, on February 23, 2017, counsel for the Defendant Office of the
Governor, moved for a protective order regarding Defendant Haley’s deposition, claiming
that the deposition notice was not served until February 9, 2017, which was after
Defendant Haley left her position as Governor. ECF No. 82 at 4. Therefore, counsel
asserted that it could not accept service of the deposition notice or produce her for a
deposition. ECF No. 82 at 4. On February 24, 2017, counsel filed a Joint Status Report,
in which they informed the Court that they could not reach an agreement regarding
Defendant Haley’s deposition. ECF No. 83. Thereafter, the parties filed responses and

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According to Plaintiffs, a deposition notice was served upon Defendant Haley’s counsel
while she was still Governor. ECF No. 80 at 2. According to Plaintiffs’ timeline, a
deposition notice for January 18, 2017, was served on January 6, 2017. Id. at 4. On
January 18, 2017, Plaintiffs rescheduled the deposition for February 24, 2017. Id.
However, according to counsel for Office of the Governor, the deposition notice was not
served on counsel until February 9, 2017. ECF No. 82 at 4. Defendant Haley resigned
as Governor on January 24, 2017. ECF No. 118-2.
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replies to the various pending motions, but Nikki Haley’s deposition did not go forward.
See, e.g., ECF Nos. 86, 98, 100–02, 104.
On August 24, 2017, the Court2 issued an Order in which it denied Defendant
Haley’s Motion to Dismiss, finding, inter alia, that “Plaintiffs allege Haley possessed
personal knowledge of systemic abuse, neglect, and exploitation of mentally disabled
adults such as [Plaintiff Johnny 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 . . . .” ECF No. 113 at 6. The Court further granted
in part and denied in part Defendant Haley’s Motion to Substitute, finding that “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.” Id. at 7. With respect to Defendant
Haley’s Motion for a Protective Order, the Court held that it “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.” Id. at 8.
On August 31, 2017, Defendant McMaster filed a Motion to Clarify. ECF No. 118.
The Motion to Clarify states that it “is filed on behalf of the Office of the Governor and not
on behalf of Nikki Haley, individually, whom counsel does not represent.” Id. at 2. The
Court found that, “[t]o the extent Defendant McMaster makes arguments on behalf of

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This case was initially assigned the Honorable Mary Geiger Lewis. The case was
reassigned to this Court on December 15, 2017.
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Defendant Haley regarding the effectiveness of service and whether Defendant Haley is
being sued in her individual capacity, the Court rejects those contentions inasmuch as
those issues must be raised, if at all, by Defendant Haley.” ECF No. 129. The Court
further ordered that Plaintiffs file a certificate of service “showing they have personally
served Defendant Haley with (1) a copy of the Court’s August 24, 2017, Order as well as
(2) their subpoena for Defendant Haley’s deposition not later than Friday, October 6,
2017. Given the important duties and obligations Defendant Haley has as the United
States Ambassador to the United Nations, the Court directs Plaintiffs to make every
reasonable accommodation in scheduling Defendant Haley’s deposition.” Id. Thereafter,
Plaintiffs attempted to serve Defendant Haley at her South Carolina residence as well as
at the United Nations to no avail. ECF No. 132 at 2. However, on October 4, 2017,
attorney James W. Fayssoux, Jr., contacted Plaintiffs, informed Plaintiffs that he
represents Defendant Haley, and later accepted service of the subpoena. Id.
On October 19, 2017, Defendant Haley filed a Motion for Clarification, or
Alternatively, for Other Relief, and a Motion to Stay. ECF No. 133. In the Motion,
Defendant Haley seeks a “declar[ation] that she is not a party to the above action.”3 ECF
No. 133 at 1. Defendant Haley argues that she “has never been served with a Complaint
. . . [s]he has never received notice of a hearing . . . [and] [u]ntil now, she has never been
represented.” ECF No. 133-1 at 2. Defendant Haley spends the bulk of this Motion
arguing that the Court’s prior ruling, which found that Plaintiffs had alleged claims against
Defendant Haley in her individual capacity, was incorrect. However, in the alternative,

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For purposes of this Order, the Court assumes, without deciding, that Haley is properly
named as a defendant in her individual capacity, consistent with the prior Order of the
Court. See ECF No. 113.
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Defendant Haley requests that the Court issue an Order requiring that she be served with
a copy of the Complaint and be provided a meaningful opportunity to respond. Id. at 14.
Finally, Defendant Haley moves the Court to stay enforcement of its prior Order requiring
her to give a deposition until the matters raised in the Motion were resolved. Id. Plaintiffs
filed a response, in which they contend that the Court’s prior Order regarding Defendant
Haley’s individual capacity was correct, and arguing that Defendant Haley has had ample
notice of the claims against her since the inception of the litigation. ECF No. 137. The
Court issued an Order staying the case pending resolution of Defendant Haley’s Motion
for Clarification. ECF No. 135.
On March 21, 2018, the Court issued an Order on Defendant Haley’s Motion for
Clarification, ECF No. 133, and Plaintiffs’ Motion to Substitute and Depose, ECF No. 144.
Relevant to the issue at bar, the Court found that Defendant Haley should not be initially
required to submit to an oral deposition. ECF No. 170 at 6. Instead, the Court permitted
Plaintiffs to ask Defendant ten written interrogatories and gave Defendant Haley thirty
days to provide written responses under oath.4 Id. Additionally, the Court directed the

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Plaintiffs previously acknowledged that “[i]f Nikki Haley testifies under oath that she had
no personal knowledge or involvement in the matters alleged in the amended complaint,
then her deposition should be short.” ECF No. 80 at 3. In light of that concession and
mandates of Federal Rule of Civil Procedure 26, the Court determined in its discretion
that the interrogatory procedure was the most efficient and reasonable means of
determining whether Defendant Haley had any relevant information as a threshold matter.
See, e.g., Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997) (finding a district court
did not abuse its discretion in adopting a similar approach in a Section 1983 action against
the Chicago Police Superintendent and noting “the course the judge followed could well
be thought commanded, in the circumstances of this case, by Fed. R. Civ. P. 26(c)(3),
which expressly authorizes the district court, in order to protect a person from annoyance,
embarrassment, oppression, or undue burden or expense, to direct that discovery may
be had only by a method of discovery other than that selected by the party seeking
discovery.” (internal quotations omitted)).
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parties to file Defendant Haley’s answers and brief whether summary judgment was
appropriate as to Defendant Haley. Id. Therefore, the Court held Defendant Haley’s
Motion for Clarification in abeyance pending resolution of the summary judgment
question. The parties have now filed Defendant Haley’s responses and the issue of
summary judgment is properly before the Court.
LEGAL STANDARD
One of the principal purposes of summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
It is “not a disfavored procedural shortcut,” but is instead the “principal tool by which
factually insufficient claims or defenses [can] be isolated and prevented from going to trial
with the attendant unwarranted consumption of public and private resources.” Id. at 327.
To that end, Rule 56 states “[t]he 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
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “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. When 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).
The party seeking summary judgment shoulders the initial burden of demonstrating
to the court that there is no genuine issue of material fact. Celotex Corp., 477 U.S. at
323. Once the movant has made this threshold demonstration, the non-moving party, to

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survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material
facts exist that give rise to a genuine issue. Id. 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 granting the
summary judgment motion. Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th
Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “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.
Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to
the non-movant, he must produce existence of a factual dispute on every element
essential to his action that he bears the burden of adducing at a trial on the merits.

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DISCUSSION
Plaintiffs’ Amended Complaint alleges causes of action under the South Carolina
Tort Claims Act, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act,
South Carolina Administrative Procedures Act, and 42 U.S.C. § 1983.

Plaintiffs’

Amended Complaint might be said to be inartfully drafted, and it appears the only
colorable claim against Defendant Haley in her individual capacity is the claim under 42
U.S.C. § 1983. The Court previously addressed this claim in reviewing Defendant Haley’s
Motion to Dismiss, noting that “Plaintiff[s] 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.” ECF No. 113 at 6. However,
it is important to note that the Amended Complaint does not explicitly indicate that any
claims are alleged against Defendant Haley in her individual capacity. Plaintiffs’ only
assumed this position when Defendant Haley moved to substitute Defendant McMaster.5
Plaintiffs’ motives for this sudden change in position notwithstanding, Plaintiffs have now
had the opportunity to conduct discovery and produce evidence in support of allowing
their claims against Defendant Haley to go forward. As detailed below, Plaintiffs have
failed to do so.
As an initial matter, Plaintiffs contend that Defendant Haley failed to comply with
the Court’s directives because her answers are not sworn as required by the Court.
Plaintiffs are correct that the Court directed Defendant Haley to provide her answers

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Again, the Court notes that Plaintiffs’ initial stated reason for taking Defendant Haley’s
deposition was “to determine whether she may be liable, in her individual capacity, for
any of the claims alleged in the amended complaint.” ECF No. 80 at 2 (emphasis added).
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under oath. While her responses are not notarized, federal law permits the use of
declarations rather than affidavits in federal court. See 28 U.S.C. § 1746. Therefore, the
Court rejects Plaintiffs’ request that the Court find Defendant Haley failed to comply with
the Court’s instructions.
The Court provided Plaintiffs the opportunity to ask Defendant Haley ten questions
related to their claims. Despite this, Plaintiffs did not ask any questions about Defendant
Haley’s knowledge of Plaintiff Johnny Timpson’s care or the provision of services to him.
Instead, Plaintiffs asked Defendant Haley a variety of questions related to her knowledge,
while Governor, of various alleged improprieties in the administration of Medicaid waiver
services. Defendant Haley’s responses indicate that she had no personal knowledge or
involvement in Plaintiffs’ treatment and that the South Carolina Department of Health and
Human Services and South Carolina Department of Disabilities and Special Needs
(“DDSN”) were the agencies properly charged with addressing allegations of abuse.
Indeed, Defendant Haley’s answers provide no evidence whatsoever of her personal
involvement in the issues raised in the case at bar. In response, Plaintiffs have now
offered a lengthy affidavit from a former DDSN Commissioner, Deborah McPherson. This
affidavit essentially contains Ms. McPherson’s opinion that Defendant Haley’s answers
are “not believable.” ECF No. 178-3 at 3. Significantly, in her affidavit, Ms. McPherson
draws inferences from communications with others but indicates no personal knowledge
of Defendant Haley’s knowledge or actions.
The Court has carefully considered Defendant Haley’s answers as well as other
information provided by the parties throughout this case. The Court concludes that
Plaintiffs’ allegations simply relate to Defendant Haley’s alleged supervisory responsibility

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as Governor and there is no evidence Defendant Haley was personally involved in the
reduction of Plaintiff Johnny Timpson’s services, failure to provide adequate care, or
alleged misuse of the administrative review process.
The Honorable Timothy M. Cain addressed a strikingly similar claim against
Governor Mark Sanford in Peter B. v. Sanford, C/A No. 6:10-767-TMC, 2012 WL 2149784
(D.S.C. June 13, 2012).

There, Judge Cain granted Governor Sanford summary

judgment on the plaintiffs’ claims under 42 U.S.C. § 1983, finding:
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. Instead,
liability will lie where it is affirmatively shown that the official charged acted
personally in the deprivation of the plaintiff’s rights.
Id. at *6 (internal quotations and citations omitted). Here, the Court finds, as in Peter B.,
that Plaintiffs have failed to offer any evidence that Defendant Haley acted personally in
the alleged deprivation of Plaintiffs’ rights. Therefore, to the extent she is a party to this
action, it is appropriate to grant Defendant Haley summary judgment. Having determined
that Plaintiffs failed to produce any evidence of Defendant Haley’s personal involvement
in the issues raised in this case, the Court need not reach Defendant Haley’s arguments
about qualified and legislative immunity.
CONCLUSION
Accordingly, Defendant Nikki Haley’s Motion for Clarification, or Alternatively, for
Other Relief, and Motion to Stay, ECF No. 133, is FOUND AS MOOT in light of this Order
granting summary judgment for Defendant Haley as to all claims purportedly made
against her in her individual capacity. Further, the Court lifts the stay of its prior deadlines

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in this case and directs the parties to confer and provide the Court with a Final Amended
Scheduling Order within ten days of this Order.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge
June 26, 2018
Spartanburg, South Carolina

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