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Peter B. v. Buscemi

United States District Court, D. South Carolina, Greenville Division

December 10, 2014

Peter B., Jimmy


TIMOTHY M. CAIN, District Judge.

This matter is before the court on the Motion to Dismiss filed by Defendants Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Health and Human Services ("DHHS"), and the South Carolina Department of Disabilities and Special Needs ("DDSN") (ECF No. 256); and Plaintiff Peter B.'s Motion to Redact (ECF No. 280) and Motion to Withdraw and Bifurcate (ECF No. 286). Responses and replies have been filed in regard to these motions. (ECF Nos. 264, 277, 284, and 293). These motions are now ripe for ruling.[1]

I. Background/Procedural History

Plaintiff Peter B. (hereinafter referred to as "Plaintiff") is approximately 43 years old and has moderate mental retardation, hydrocephalus, diabetes, coronary heart disease, an anxiety disorder, and a history of stress-induced seizures. (ECF No. 108, Am. Compl. ¶ 34). He participates in a Medicaid waiver program for persons with Mental Retardation/Related Disabilities ("MR/RD waiver"). (Am. Compl. ¶ 31).[2] Plaintiff alleges that Defendants have reduced or eliminated, or threatened to reduce or eliminate, the services which are provided to him under the MR/RD waiver program and that this diminution in services will force him into an institution in violation of Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).[3]

Prior to 2005, Plaintiff was receiving MR/RD waiver services, including 12 hours of oneon-one companion services. (Am. Compl. 36, 48). In 2005, Plaintiff was notified that his oneon-one companion services were being terminated. (Am. Compl. 50). Plaintiff appealed the final agency decision to DHHS and the hearing officer affirmed finding it lacked subject matter jurisdiction because Plaintiff had failed to establish that the companion services were necessary to keep him out of an institution, and therefore such services were not services covered by the Medicaid waiver. Plaintiff appealed to the Administrative Law Court ("ALC"), which also affirmed.

Plaintiff's one-on-one companion services continued through mid-2009 until the South Carolina Administrative Law Court's ("ALC)" affirmance. In 2010, Plaintiff sought a preliminary injunction from this court to have the services restored during the pendency of this litigation and on March 7, 2011, United States District Judge J. Michelle Childs issued a preliminary injunction ordering that Plaintiff's services be restored to the quality, kind, and volume enjoyed by Plaintiff prior to July 2009. (ECF No. 95 at 7).

On August 20, 2011, the South Carolina Court of Appeals reversed the ALC's determination that the hearing officer lacked subject matter jurisdiction and remanded the action to DHHS for a hearing. Brown v. S.C. Dept. of Health & Human Servs., 709 S.E.2d 701 (S.C. Ct. App. 2011). Stating that subject matter jurisdiction is determined by the question to be answered and not by the answer, the court held that because Plaintiff alleges his companion service is covered by Medicaid, DHHS had subject matter jurisdiction. Brown, 709 S.E.2d at 704. The court specifically stated it was not reaching the issue of whether companion services qualifies as a waiver. Id. at 705.

Before the remand hearing was held, Defendants moved for summary judgment in the instant action on the ground that Plaintiff's federal claims were not ripe for decision as there was no final decision by a state tribunal as of that time on the issue of whether the services should be provided. (ECF No. 200). The court agreed and stayed this action as to Plaintiff pending the resolution of the state proceedings. (ECF No. 231 at 19).[4]

On March 12, 2013, the hearing officer dismissed the case as moot after DHHS informed her that the agency was not going to contest the case on the merits. (ECF No. 241-1 at 4-9). Plaintiff appealed that order to the ALC, and on February 4, 2014, the ALC affirmed the hearing officer's decision. (ECF No. 247-1 at 2-9). Thereafter, Plaintiff's counsel filed a Notice of Appeal and a motion to be relieved as counsel with the South Carolina Court of Appeals. On April 28, 2014, the South Carolina Court of Appeals granted the motion to be relieved and informed Plaintiff that he had thirty days to obtain new counsel, or proceed pro se. (ECF No. 247-2 at 2).[5] Defendant SCDHHS filed a motion to dismiss on the grounds that the appeal is moot and Plaintiff failed to file an initial brief and the appeal. On October 10, 2014, in response to Plaintiff's claim that he never received the April 28th Order, the South Carolina Court of Appeals appointed an attorney for Plaintiff and directed him to file a memorandum addressing the mootness claims within thirty days. On December 3, 2014, Plaintiff's counsel filed a letter with the South Carolina Court of Appeals conceding the action was moot.

Here, Plaintiff seeks only declaratory and injunctive relief finding Defendants have violated the ADA, Section 504 of the Rehabilitation Act, and the Medicaid Act, prohibiting the 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, Plaintiff seeks 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, Plaintiff seeks an order declaring that Defendants Keck, Floyd, Huntress, and Buscemi denied Plaintiff's civil rights in violation of 42 U.S.C. §§ 1983 and 1988. (Am. Compl. ¶ 321).

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, 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 nonmovant'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. Comm'n 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 ...

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