Estate of Edward James Mims, Laura M. Cole, Personal Representative, Appellant,
The South Carolina Department of Disabilities and Special Needs, Kathi Lacy, and Stan Butkus, Respondents. Appellate Case No. 2014-001373
June 8, 2017
Withdrawn, Substituted and Refiled February 21, 2018
From Richland County G. Thomas Cooper, Jr., Circuit Court
Patricia Logan Harrison, of Columbia, for Appellant.
William H. Davidson, II and Kenneth P. Woodington, of
Davidson & Lindemann, PA, of Columbia, both for
James Mims, a severely disabled adult,  sued Respondents
South Carolina Department of Disabilities and Special Needs
(DDSN) and two of DDSN's employees, Kathy Lacy and Stan
Butkus, alleging violations of the Americans with
Disabilities Act (ADA) and the Rehabilitation Act; negligent
supervision, gross negligence, and negligence; and civil
rights violations under 42 U.S.C § 1983. After a
hearing, the circuit court granted Respondents' motion
for summary judgment. We affirm in part, reverse in part, and
remand to the circuit court.
the circuit court, we are required to view the record in the
light most favorable to Mims, construing all ambiguities and
inferences in his favor. Simmons v. Berkeley Elec. Coop.,
Inc., 419 S.C. 223, 228, 797 S.E.2d 387, 390 (2016). In
light of this standard, the facts presented at summary
judgment are as follows:
was born prematurely and, as a result, suffered both physical
and mental disabilities. At age twenty-one, an evaluation
found him to have the cognitive ability of a twenty-month-old
child. During the first twenty-seven years of his life, Mims
lived with and was cared for by his mother, Margaret Mims. In
1999, Ms. Mims fell ill, and Mims was voluntarily committed
to full-time DDSN care in a residential facility known as
"Clusters." While at Clusters, Mims experienced
several ailments, including bruises on his groin, vomiting,
and a twenty-eight pound weight loss. In 2000, Mims was
beaten by a Clusters employee. Several months after the
beating, Ms. Mims requested Mims be returned to her care. In
response, DDSN petitioned the probate court to have Mims
committed to the residential facility. After a hearing, the
probate court judicially admitted Mims to DDSN's care,
concluding he was profoundly mentally retarded with complex
medical needs. After the Clusters employee was arrested
and charged with assault and battery as a result of beating
Mims, Ms. Mims wrote a letter to DDSN again requesting he be
returned to her care.
response, Ms. Mims received a letter from DDSN's Director
of Government and Community Relations that stated:
It is obvious Ms. Mims, that you love your son very much and
took care of him in your home for many years. We understand
that you wish it were possible for him to live at home again.
All of us agree that one single person is not enough people
to provide care for [Mims]. It is impossible because of his
conditions and the fact that several different people have to
be awake and around him all the time.
January 2002, Mims was repeatedly hit by another resident
with a belt. The State Long Term Care Ombudsman reviewed the
incident and concluded that:
It is substantiated that resident-to-resident abuse occurred.
The [Omnibus Adult Protection Act] states that physical abuse
does not include altercations or acts of assault between
vulnerable adults. However, the incident should have been
reported to the Ombudsman because of its serious nature.
Although the Ombudsman Program does not have the statutory
authority to investigate resident-to-resident abuse, it would
investigate to determine if adequate supervision was
provided. Lack of Supervision was also substantiated based on
the above findings.
March 2002, Mims was transferred from Clusters to another
residential facility under contract with DDSN called
"Kensington." In 2003, the Department of Health and
Human Services Centers for Medicare and Medicaid Services
(CMS) investigated Clusters and found the facility failed to
consistently provide the staffing or training necessary to
2002 and 2004, Mims was treated for a swollen and bruised
hand, elevated blood pressure, suspected pain, and an
incident where he was discovered to have a large number of
ant bites. In late 2004, one of Mims'
co-residents died after choking on insufficiently pureed
food, precipitating another investigation by CMS. In April
2005, CMS terminated Kensington's certification. As a
result, some of Kensington's residents were relocated to
other facilities; however, DDSN did not relocate Mims.
later, on May 27, 2005, Mims presented to the emergency room
with a four centimeter laceration to the undersurface of his
penis. Although the emergency-room doctor's notes
described the injury as a "[s]uperficial laceration to
penis, " the laceration was repaired with seven sutures.
An internal investigation of the injury concluded "the
origin remains unexplained." Upon learning of the
injury, Ms. Mims initiated proceedings to become Mims'
emergency hearing was held on Ms. Mims' petition for
guardianship. Based on evidence presented indicating
Kensington was decertified in April 2005 and Mims sustained a
"serious unexplained injury" on May 27, 2005, the
probate court appointed Ms. Mims as her son's guardian
29, 2007, Ms. Mims filed a complaint on Mims' behalf,
suing DDSN for various torts and statutory violations.
However, that complaint was never served. On May 7, 2008,
Mims filed an amended complaint, adding Respondents Lacy and
Butkus to the lawsuit and pleading the current allegations.
The amended complaint was served on May 12, 2008.
filed a motion to dismiss for untimely service, which was
originally denied but then granted after a hearing on the
motion to reconsider. Mims ex rel. Mims v. Babcock Ctr.,
Inc., 399 S.C. 341, 343-44, 732 S.E.2d 395, 396 (2012).
Mims appealed the dismissal, and the South Carolina Supreme
Court found the amended complaint was timely served.
Id. (holding Rule 15(a), SCRCP, allows for ...