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Kobe v. McMaster

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

December 19, 2018

Kobe, Mark, Plaintiffs,
Henry McMaster, in his capacity as Governor[1]of the State of South Carolina, et al., Defendants.




         This case has an extensive history. Briefly, Plaintiffs Kobe, Mark, and John[2] filed a complaint on May 11, 2011, and an amended complaint on October 18, 2011. Plaintiffs alleged the following causes of action: Violation of the Americans With Disabilities Act (Count One); Violation of Section 504 of the Rehabilitation Act (Count Two); Violation of 42 U.S.C. § 1983 (Count Three); Violation of 42 U.S.C. §§ 1983 and 1988 (violation of civil rights) (Count Four); Violation of 42 U.S.C. § 1985(3) (conspiracy) (Count Five); Violation of the Supremacy Clause (Count Six); and Violation of RICO (Count Seven).[3]

         Of relevance here, the matter came before the court on motions for summary judgment filed by Defendants on January 6, 2014. Plaintiff also filed a motion for summary judgment on January 6, 2014, which was amended on January 22, 2014. Plaintiff contended that the court should resolve the following issues:

(1) Have the Defendants violated the reasonable standards provision of 42 U.S.C. § 1396a(a)(17) of the Medicaid Act and the South Carolina Administrative Procedures Act by failing to establish and utilize reasonable, ascertainable, non-arbitrary standards and procedures to determine eligibility for and the extent of medical assistance provided to Plaintiffs?
(2) Have the Defendants violated the “reasonable promptness” requirement of the Medicaid Act by failing to provide Kobe with the wheelchair and speech device his physician ordered and by failing to provide residential services in the least restrictive setting within ninety days of those needs being identified?
(3) Have the Defendants violated the integration mandate of the Americans with Disabilities Act by failing to provide Kobe with a wheelchair, a speech device, speech therapy services and placement in a supervised apartment with necessary support services?

ECF No. 25, 3.[4]

         The court issued an order and opinion on September 30, 2014, concluding that Plaintiffs' claims should be dismissed either as moot, not ripe, or because Plaintiffs lacked standing. ECF No. 296. Accordingly, the court granted Defendants' motions for summary judgment. Plaintiffs timely a notice of appeal. On December 15, 2016, the Court of Appeals for Fourth Circuit affirmed the court's rulings as to Mark on ripeness grounds. Id. at 33, n.21. Next, the Fourth Circuit affirmed in part, vacated in part, and remanded the action. ECF No. 368. First, the Fourth Circuit affirmed the court's determination that the eligibility to receive ADHC services is moot based on the consent orders entered with these Plaintiffs. Id. at 37.

         The Fourth Circuit determined, however, that there was a “pattern of allegedly unreasonable delays and improper denials” with respect to Kobe's wheelchair and ACD entitlement. The Fourth Circuit found that Defendants “have not met their ‘heavy burden' of showing that after this litigation has concluded, Kobe will not once again find himself without the equipment he needs and without any ability to obtain it without significant delay.” Id. at 39. Therefore, the Fourth Circuit vacated the court's order on justiciability grounds, and remanded for further proceedings. Id. In addition, the Fourth Circuit vacated the grant of summary judgment in favor of Defendants on Counts One through Seven and remanded for further consideration of the viability of Plaintiffs' claims against each Defendant. Id. at 40.[5]

         The matter again came before the court on Defendants' motions for summary judgment on remand, as well as on cross-motion for summary judgment filed by Plaintiffs. On March 30, 2018, the court issued an order granting Defendants' motions and denying Plaintiffs' cross-motion. Mark's claims having been found moot by the Fourth Circuit, the court addressed only Kobe's claims.[6] The court found, in relevant part, as follows:

A. Amended Motion for Summary Judgment on Remand filed by Defendants Buscemi, Laurent, Butkus, Huntress, Lacy, Waring, and Chorey (the “DDSN Defendants”)
The DDSN Defendants observe that, as to them, Plaintiff has shown no need for prospective injunctive relief and has abandoned any damages claims, such that these Defendants are entitled to dismissal of the case against them in its entirety. As to the merits of Plaintiff's allegations, the DDSN Defendants assert that Counts 1 (ADA) and 2 (Rehabilitation Act) essentially present the same contention that Plaintiff was wrongfully denied ADHC services. As noted hereinabove, the Fourth Circuit has determined this particular contention is moot because Plaintiff did not lose ADHC services and, further, were successful on administrative appeal.
The DDSN Defendants assert that any non-ADA or non-Rehabilitation Act claims against these Defendants in their official capacities are barred by the Eleventh Amendment. See Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)). As to Plaintiff's § 1983 claims against the DDSN Defendants in their individual capacities (Counts 3, 4), these Defendants argue that Plaintiff failed to show any specific factual allegations of wrongdoing attributable to any of the named DDSN Defendants. Regarding Plaintiff's claim that he was denied a wheelchair and ACD, the DDSN Defendants assert these claims are directed to the DHHS Defendants, Keck and Fortner. Regarding Count 5, the DDSN Defendants asserts that Plaintiff's claims relate to a conspiracy to deny him ADHC services, and because such services were not denied, “obviously there could not have been a conspiracy to effect such denial.” ECF No. 399-1, 11.
Regarding Count 6, the DDSN Defendants note the dearth of factual allegations in the amended complaint under this cause of action, which simply states:
376. Defendants have violated the following provisions of the Medicaid Act, in violation of the Supremacy Clause of the United States Constitution: reasonable promptness (42 U.S.C. § 1396(a)(8)); free choice (42 U.S.C. § 1396(a)(23)); comparability (42 U.S.C. § 1396(a)(10)); reasonable standards (42 U.S.C. § 1396a(a)(17)) and equal access (42 U.S.C. § 1396a(a)(30)) provisions of the Social Security Act.
ECF No. 65, 64.
The DDSN Defendants assert Plaintiff has set forth no facts showing harm to Plaintiff or specific acts by these Defendants that resulted in violations of enumerated sections of the Medicaid Act and Social Security Act.
Finally, regarding Count 7, the DDSN Defendants contend that Plaintiff has failed to allege (1) one of the “predicate acts” set forth in 18 U.S.C. § 1961(1); (2) how, if at all, the purported activities of the criminal enterprise affected interstate or foreign commerce; or (3) any evidence Plaintiff suffered a business or property loss.
In his response in opposition, Plaintiff offers a lengthy recitation of factual allegations and appears to address only the following causes of action as to DDSN: Count 5 (conspiracy to interfere with civil rights); Count 6 (Supremacy Clause), and Count 7 (RICO). Plaintiff does not dispute the DDSN Defendants' arguments regarding Counts 1, 2, 3, and 4. The court concludes Plaintiff has abandoned these causes of action as to these Defendants.
Turning to Count 5 (conspiracy to deny civil rights), Plaintiff asserts the following in his response in opposition to the DDSN Defendants' motion for summary judgment:
Plaintiffs have alleged that they have been deprived of services and needed equipment and due process, liberty and equal protection rights. Kobe has demonstrated that he has suffered discrimination and [been] injured thereby as a consequence of overt acts committed by the named Defendants in connection with the conspiracy.

         ECF No. 436, 34.

Plaintiff's argument is based on his contention that DHHS, DDSN, and other agencies have engaged in wide-spread corruption, negligence, and criminal conduct over the past decade or more. In the court's view, Plaintiff's allegations fail to demonstrate any of the DDSN Defendants' purported mismanagement and falsification of information, if such conduct were to be proven, was motivated by a specific class-based, invidiously discriminatory animus to deprive Plaintiff of his rights. In point of fact, Plaintiff alleges that the “conspiratorial purpose was financial.”
Regarding Count 6 (Supremacy Clause), Plaintiff states that the “future deterrence of violations is critically important in this case, because Plaintiffs have life long disabilities and their needs will increase as they age. Waiver participants simply cannot afford years of litigation each time they require a wheelchair, a speech device or other medically necessary services.” ECF No. 436, 31-32. The Supremacy Clause is not the source of any federal rights, and does not create a cause of action. Armstrong v. Exceptional Child Center, Inc., 135 S.Ct. 1378, 1383 (2015). It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so. Id. Moreover, there is no suggestion in the record by any party of a clash between state and federal law. The gravamen of Plaintiff's complaint is that Defendants have, in varying respects, failed to comply with the mandates set forth in the ADA, Rehabilitation Act, and Medicaid.
Finally, regarding Count 7 (RICO), Plaintiff asserts that he has provided “extensive documentation of conduct of an enterprise (the diversion of funds to DDSN work activity centers) through a pattern of racketeering activity.” ECF No. 436, 35. Plaintiff asserts predicate acts to include “obtaining insurance through false pretenses, including money laundering, mail and wire fraud and intimidation of witnesses.” Id. While it is true that Plaintiff has made allegations of corruption, his claims are speculative in nature. The court discerns no facts tending to show an enterprise distinct from the persons alleged to have violated 18 U.S.C. § 1962 (c). See Palmetto State Med. Ctr. v. Operation Lifeline, 111 F.3d 142, 148 (4th Cir. 1997). Nor has Plaintiff proved that each DDSN Defendant engaged in at least two acts of racketeering activity within a ten-year period, as required by 18 U.S.C. § 1961(5). For all these reasons, the DDSN's motion for summary judgment is granted.
C. Motion to Dismiss and for Summary Judgment filed by Defendant Leitner
Defendant Leitner asserts that she is entitled to summary judgment as to Plaintiff's claim against under Count 3 (42 U.S.C. § 1983), the only count in which she is named. See ECF No. 65, ¶ 311. Defendant Leitner notes that the only factual allegations in the amended complaint alleges that on January 5, 2011, she, as Director of the Richland Lexington Disabilities Board, sent a letter to Plaintiff alerting him that a review of ADHC services was forthcoming. Defendant Leitner states that, as discussed above, Plaintiff was never denied ADHC services, and there are no other factual allegations of wrongdoing with respect to her that she violated Plaintiff's constitutional rights. Defendant Leitner also argues that she was not involved in the DHHS denials of Plaintiff's applications for an ACD. According to Defendant Leitner, it was through the Richland Lexington Disabilities Board that an ACD was borrowed for Plaintiff through the University of South Carolina Assistive Technology Program in 2013, and also through the Richland Lexington Disabilities Board that Plaintiff's case manager ...

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