Johnny Timpson v. Anderson County Disabilities ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1163
JOHNNY TIMPSON, by and through his Conservator, Sandra Timpson; SANDRA
TIMPSON, in her individual capacity,
Plaintiffs – Appellants,
v.
ANDERSON COUNTY DISABILITIES AND SPECIAL NEEDS BOARD;
MICHELLE RICKETSON, Chairman of The Anderson County Disabilities and
Special Needs Board; DALE THOMPSON, former Executive Director of The
Anderson County Disabilities and Special Needs Board; JERREL LYNN KING,
current Director of The Anderson County Disabilities and Special Needs Board;
SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND SPECIAL
NEEDS, DDSN; GARY C. LEMEL, Chairman, DDSN Commission; BEVERLY
BUSCEMI, former Director of the South Carolina Department of Disabilities and
Special Needs, in her individual capacity; SOUTH CAROLINA DEPARTMENT
OF HEALTH AND HUMAN SERVICES; CHRISTIAN SOURA, former Director
of the South Carolina Department of Health and Human Services, in his individual
capacity; GREENVILLE COUNTY DISABILITIES AND SPECIAL NEEDS
BOARD; ROBERT M. ARIAIL, Chairman of the Board of Thrive Upstate,
formerly known as the Greenville County Disabilities and Special Needs Board;
TYLER REX, Director of Thrive Upstate; THRIVE UPSTATE; HENRY
DARGAN MCMASTER, Governor of the State of South Carolina in his official
capacity; MARY POOLE, Director of the South Carolina Department of Disabilities
and Special Needs; JOSHUA BAKER, Director of the South Carolina Department
of Health and Human Services; NIKKI HALEY, in her individual capacity,
Defendants – Appellees,
and
UNKNOWN ACTORS, at the Anderson Disabilities and Special Needs Board;
UNKNOWN ACTORS, at the Greenville County Disabilities and Special Needs
Board and/or Thrive Upstate,
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Defendants.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Donald C. Coggins, Jr., District Judge. (6:16-cv-01174-DCC)
Argued: January 25, 2022 Decided: April 7, 2022
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote
the opinion in which Judge Motz and Judge Wynn joined.
ARGUED: Patricia L. Harrison, Cleveland, South Carolina, for Appellants. Patrick John
Frawley, DAVIS FRAWLEY, LLC, Lexington, South Carolina, for Appellees. ON
BRIEF: Robert C. Childs, III, Greenville, South Carolina, for Appellants. William H.
Davidson, II, Kenneth P. Woodington, DAVIDSON, WREN & DEMASTERS, P.A.,
Columbia, South Carolina, for Appellees South Carolina Department of Disabilities and
Special Needs, Lemel, and Buscemi. Damon C. Wlodarczyk, RILEY, POPE & LANEY,
LLP, Columbia, South Carolina, for Appellees South Carolina Department of Health and
Human Services and Soura. James W. Logan, Jr., LOGAN & JOLLY, LLP, Anderson,
South Carolina, for Appellee Henry McMaster, Governor of the State of South Carolina.
Knox L. Haynsworth, III, BROWN, MASSEY, EVANS, MCLEOD & HAYNSWORTH,
LLC, Greenville, South Carolina, for Appellees Thrive Upstate, formerly the Greenville
County Disabilities & Special Needs Board, Arial, and Rex. Karl S. Bowers, Jr., BOWERS
LAW OFFICE, LLC, Columbia, South Carolina, for Appellee Nikki Haley.
2
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AGEE, Circuit Judge:
Johnny and Sandra Timpson (the “Timpsons”) appeal from various preliminary
orders of the district court and the entry of directed verdicts on several of their claims. For
the following reasons, we affirm the district court’s judgment in part, vacate it in part, and
remand for further proceedings consistent with this opinion.
I.
A.
Before turning to the Timpsons’ allegations, we first summarize the pertinent
regulatory framework. Medicaid, established as part of the Social Security Act in 1965, “is
a cooperative federal-state public assistance program that makes federal funds available to
states electing to furnish medical services to certain impoverished individuals.” Mowbray
v. Kozlowski, 914 F.2d 593, 595 (4th Cir. 1990). The state agency responsible for
administering and supervising Medicaid in South Carolina is the South Carolina
Department of Health and Human Services (“DHHS”). 1 DHHS, in turn, contracts with the
South Carolina Department of Disabilities and Special Needs (“DDSN”) 2—a seven-
member commission appointed by the Governor 3—to operate the state’s treatment and
training programs for individuals with intellectual and related disabilities. Relevant here,
1
Christian Soura was DHHS’s Director during the relevant timeframe of 2014 to
2017, at which point current Director Joshua Baker succeeded him.
2
Beverly Buscemi was DDSN’s Director from 2009 to 2017.
3
Nikki Haley was the Governor of South Carolina from 2011 to 2017 and later
served as the United States Ambassador to the United Nations from 2017 to 2018. Henry
McMaster has served as Governor since 2017.
3
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DDSN contracts with the Anderson County Disabilities and Special Needs Board (the
“Board”) 4 to “offer[] an array of services to Medicaid-eligible clients.” J.A. 2427. DDSN
funds the Board, which follows DHHS’s and DDSN’s policies and procedures.
Although many Medicaid benefits are available only to those in intermediate care
facilities (“ICF”), Congress has established a waiver program that allows states to provide
home- and community-based services to eligible persons. The Medicaid program requires
states to inform individuals who qualify for ICF services “of the[se] feasible alternatives,
if available under the waiver.” 42 U.S.C. § 1396n(c)(2)(C).
B.
Johnny Timpson (“Johnny”) was born with severe intellectual disabilities and
cerebral palsy. 5 In 1968, when Johnny was ten years old, DDSN placed him in an ICF
called the Whitten Center, where he remained for almost thirty years. In response to a 1997
Department of Justice investigation reporting systemic abuse and neglect at the facility,
DDSN moved Johnny to a separate system of Board-operated group homes, including Tiny
Greer.
While under the Board’s care, Johnny exhibited troubling behaviors. He set fires,
threatened suicide, and engaged in sexually deviant conduct and elopements. Johnny was
hospitalized in 2002 after starting a fire and received sex education courses from 2010 to
4
Dale Thompson was the Board’s Director when Johnny Timpson lived at the Tiny
Greer group home (“Tiny Greer”)—where he alleges he was mistreated. Thompson
resigned in 2015 and has since worked for Thrive Upstate (“Thrive”), formerly known as
the Greenville County Disabilities and Special Needs Board.
5
A psychologist has estimated that Johnny “operates on a grade equivalent similar
to that of a pre-school student.” J.A. 1758.
4
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2013, despite his limited mental capacity. According to the Timpsons, even though Johnny
had regular contact and visits with his family, the Board did not notify them about any of
these events.
On May 11, 2013, staff at Tiny Greer discovered burns on Johnny’s wrists. The
Board notified Sandra Timpson (“Sandra”), one of Johnny’s sisters, but insisted that the
injuries were “minor.” J.A. 6141. Sandra believed Johnny had second-degree burns based
on photographs a staff member sent her. So she drove to Tiny Greer to speak with him.
Johnny told her that he did not burn himself, that the staff had injured him, and that he was
telling the truth. The Tiny Greer staff, on the other hand, reiterated that Johnny had burned
himself. Sandra reported this and several other incidents to the police. But Johnny
consistently changed his story, later insisting that his injuries were self-inflicted.
On June 12, 2013, Sandra secured a health care power of attorney over Johnny, 6 and
the Board discharged him to her care on August 30, 2013. While in her care, the only
service the Board arranged for Johnny to attend was Thrive’s program. According to the
Timpsons, neither the Board nor Johnny’s new case manager told Sandra that he was
entitled to receive services from a non-DDSN-affiliated provider. Nor, they allege, was she
told of the “feasible alternatives” of receiving in-home and behavior-support services, or
that Sandra could be paid for providing care in her home. J.A. 258.
6
Johnny executed the health care power of attorney, authorizing Sandra to make
health care decisions for him and to obtain his medical records. The power of attorney did
not authorize Sandra to make financial decisions on his behalf.
5
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C.
The Timpsons brought suit in South Carolina state court in February 2016. After the
case was removed to the United States District Court for the District of South Carolina, 7
the Timpsons filed an amended complaint, naming fourteen Defendants (ten individuals 8
and four agencies 9) and alleging five causes of action: (1) negligence and gross negligence
under the South Carolina Tort Claims Act (“SCTCA”); (2) violations of the Americans
with Disabilities Act (“ADA”); (3) violations of the Rehabilitation Act (“RA”);
(4) violations of the South Carolina Administrative Procedures Act 10; and (5) violations of
various Medicaid statutory and regulatory rights pursuant to 42 U.S.C. § 1983. The
amended complaint alleged misconduct collectively against all Defendants, without citing
any specific acts on the part of any specific individual. Defendants answered, asserting
various affirmative defenses and denying liability.
From the start, there was confusion about whether the Timpsons had sued then-
Governor Haley in her official capacity as Governor or in her individual capacity. While
she sought clarification from the district court, the Timpsons noticed her deposition. In
response (and after she had left state office to assume her position at the United Nations),
then-Ambassador Haley filed a motion for a protective order, arguing that Governor
McMaster was automatically substituted as a party upon her resignation. The Timpsons
7
The federal courts have subject matter jurisdiction under 28 U.S.C. §§ 1331, 1367.
8
These included then-Governor Haley, various members of the Board, as well as
the Directors of DDSN, DHHS, and Thrive.
9
These included the Board, DDSN, DHHS, and Thrive.
10
The Timpsons’ Administrative Procedures Act claims are not at issue in this
appeal.
6
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acknowledged that Governor McMaster should automatically be substituted for the claims
against then-Ambassador Haley in her official capacity as Governor, but stated that they
were still “entitled to take the deposition of Nikki Haley 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.” J.A. 446 (emphasis added).
The district court ordered that, before requiring then-Ambassador Haley to submit
to an oral deposition, the Timpsons should first pose ten written interrogatories. The court
then directed the parties to submit her answers and brief whether the deposition should
proceed or if summary judgment was appropriate as to the Timpsons’ individual capacity
claims. See J.A. 1016 (explaining that “the interrogatory procedure was the most efficient
and reasonable means of determining whether Defendant Haley had any relevant
information as a threshold matter” (citing Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th
Cir. 1997) (adopting a similar approach for deposing high-ranking public officials))). In
reviewing the parties’ submissions, the court found the Timpsons had “not ask[ed] any
questions about Defendant Haley’s knowledge of [Johnny’s] care or the provision of
services to him.” J.A. 1020. 11 Instead, they posed “a variety of questions related to her
knowledge, while Governor, of various alleged improprieties in the administration of
Medicaid waiver services.” Id. Unsurprisingly, then-Ambassador Haley’s answers
“provide[d] no evidence whatsoever of her personal involvement in the issues raised in the
11
Before submitting the interrogatories, the Timpsons represented 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.” J.A. 447.
7
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case at bar.” Id. And because there was no evidence that she acted personally in the alleged
deprivation of Johnny’s rights, the court entered judgment in her favor.
The remaining Defendants moved for summary judgment, and the Timpsons moved
for partial summary judgment. After argument, the district court directed the Timpsons to
file “supplemental briefing on . . . how [the § 1983] claims survive[d], that is, what the
claim[s] [were] and what the evidence [was] that create[d] at least a genuine issue of
material fact.” J.A. 4651. The Timpsons submitted a brief, which the district court
criticized as “not accurately address[ing] any of those issues” and instead, much like their
amended complaint, amounting “again, [to] a diatribe against the system.” J.A. 4719.
The district court granted summary judgment for most of the Defendants on almost
all of the Timpsons’ claims and denied the Timpsons’ motion for partial summary
judgment. 12 Relevant here, the court granted summary judgment on all of the RA claims.
At a later hearing, the district court dismissed all of the remaining claims, with these
exceptions:
12
While this case was before the district court, Johnny filed an unrelated
administrative appeal with DHHS to increase the number of hours he received care each
week. He prevailed and later moved the district court to award interim attorney’s fees,
arguing his administrative agency action was “both useful and of a type ordinarily
necessary to advance the civil rights litigation to the stage it reached.” J.A. 690. The court
denied the motion. Though the Timpsons briefly appear to challenge this ruling in their
opening brief, see Opening Br. 36, 60, their efforts are so conclusory and vague that we
conclude they have waived any challenge. See United States v. Diaz, 865 F.3d 168, 179
(4th Cir. 2017) (treating an issue as waived when “the essential argument [was] contained
in one sentence”); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006)
(explaining that a single “conclusory remark” in a brief is “insufficient” to constitute an
argument). As discussed below, such vague challenges are woven throughout the
Timpsons’ briefs.
8
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1. ADA Claims 13 against the Board, DDSN, DHHS, Thrive, and Governor
McMaster;
2. SCTCA Claims against the Board, DDSN, DHHS, Thrive, and Governor
McMaster; and
3. Section 1983 Claims against Thompson and Buscemi.
At a pretrial hearing, the court barred testimony unrelated to Johnny and the
facilities in which he was placed. The court also prohibited the Timpsons from presenting
evidence related to alleged state-wide violations of law, admonishing, “You did not bring
this as a class action. You did not bring this with [Johnny] as a representative plaintiff for
all other[s] similarly situated. You are not going to put the system on trial.” J.A. 4766. 14
The remaining Defendants objected to Johnny testifying at trial, arguing he was
incompetent. The district court held a hearing, during which Johnny answered some basic
questions correctly (including the name of the President of the United States and the fact
that he lived with his sister), others incorrectly (including his year of birth and the current
year), and acknowledged it was wrong to lie. The court ruled that the probative value of
Johnny’s testimony was outweighed by the prejudice it would cause the Defendants. It also
found that the jury was likely to be confused by Johnny’s “limited ability to communicate.”
J.A. 4814–15.
D.
At trial, the district court allowed Johnny to answer questions only about “very basic
13
The district court found that the Timpsons’ RA and ADA claims were subject to
the one-year statute of limitations found in South Carolina’s Human Affairs Law.
14
The district court also denied the Timpsons’ claims for injunctive relief. They do
not meaningfully challenge this decision in their opening brief and have thus waived it. See
Diaz, 865 F.3d at 179; Eriline, 440 F.3d at 653 n.7.
9
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things” such as “his name, where he lives, who [he] lives with, . . . [and] if his arms were
injured.” J.A. 4815.
Although the Timpsons had designated Deborah McPherson (a former DDSN
Commissioner), Lennie Mullis (a behavior support provider), and Randy Thomas (a former
instructor at the South Carolina Criminal Justice Academy) as hybrid witnesses prior to
trial and disclosed the general subject matter on which they were expected to testify, none
of these witnesses filed a written report. The district court thus excluded all three from
presenting expert testimony. Moreover, it excluded Mullis altogether, but allowed
McPherson and Thomas to testify as fact witnesses, though neither knew Johnny.
At the end of the Timpsons’ case, the district court entered directed verdicts in favor
of almost all of the remaining Defendants on almost all of the claims. The only claims that
remained were the Timpsons’ ADA claim against the Board and SCTCA claims against
the Board and DDSN. 15 The jury returned verdicts for the Defendants on these remaining
claims.
The Timpsons moved for reconsideration, which the district court denied. They filed
a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
15
The court instructed the jury that the Board and DDSN could be liable under the
SCTCA if the Timpsons had shown the agencies failed “to exercise slight care” or
consciously failed “to do something which is incumbent upon one to do or the doing of a
thing intentionally that one ought not to do.” J.A. 3714.
10
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II.
The Timpsons’ briefs are meandering and conclusory. They largely consist of one-
sentence arguments and sparse (or no) citations to the record. 16 That said, as best we can
discern, it appears the Timpsons have presented five preserved issues for our review. First,
they challenge the district court’s rulings on the applicable statutes of limitations for their
RA and ADA claims. Second, they submit the district court abused its discretion in
excluding and limiting Johnny’s and the hybrid witnesses’ testimonies and in determining
whether then-Ambassador Haley should have been deposed. Third, the Timpsons assert the
district court improperly instructed the jury as to the duty owed under the SCTCA. Fourth,
they argue the district court improperly dismissed their RA claims. And fifth, the Timpsons
submit the district court erred in dismissing their § 1983 claims. We address each in turn.
A. The Statutes of Limitations
Before turning to the Timpsons’ specific challenges, we first set out the relevant
limitations periods the district court applied to their claims. Because Title II of the ADA
has no statute of limitations, federal courts “borrow the state statute of limitations that
applies to the most analogous state-law claim.” A Soc’y Without A Name v. Virginia, 655
16
For example, at one point in their opening brief, the Timpsons include the
following assertion: “The Lower Court erred as a matter of law in failing to apply the
guidelines set forth in [Blessing v. Freestone, 520 U.S. 329 (1997)], to determine whether
other provisions of the Medicaid Act create a private right enforceable under § 1983.”
Opening Br. 60. They never delineate the Blessing guidelines or how they would apply.
Nor do they provide any argument about how the district court failed to apply them. The
Timpsons likewise include no record citations to guide our review. As a result, we find this
claim—and others like it scattered throughout the Timpsons’ briefs—waived. Diaz, 865
F.3d at 179; Eriline, 440 F.3d at 653 n.7.
11
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F.3d 342, 347 (4th Cir. 2011); accord McCullough v. Branch Banking & Tr. Co., 35 F.3d
127, 129 (4th Cir. 1994). 17 Here, the district court determined that the South Carolina
Human Affairs Law’s one-year statute of limitations applied to the Timpsons’ ADA and
RA claims. See S.C. Code Ann. § 1-13-90(d)(6). The district court also applied § 15-3-40
of the South Carolina Code to extend the applicable limitations periods for Johnny’s claims
by five years due to his intellectual disability. Therefore, because the Timpsons filed this
suit in February 2016, the district court allowed Johnny to present his ADA and RA claims
extending back to February 2010, and Sandra to present hers extending back to February
2015. 18
The Timpsons challenge two aspects of the district court’s statutes of limitations
rulings. First, they argue the district court erred in finding the South Carolina Human
Affairs Law was the most analogous state law to their ADA and RA claims. Second, they
argue the district court erred in failing to apply South Carolina’s discovery rule to toll the
applicable limitations periods.
17
The Court considers RA and Title II ADA claims together “because these
provisions impose the same integration requirements.” Pashby v. Delia, 709 F.3d 307,
321 (4th Cir. 2013).
18
As for the Timpsons’ other causes of action, all SCTCA claims must be filed
“within two years after the date the loss was or should have been discovered.” S.C. Code
Ann. § 15-78-110. And § 1983 claims in this context are subject to a three-year statute of
limitations. See Wilson v. Garcia, 471 U.S. 261, 271 (1985); S.C. Code Ann. § 15-3-530(5).
As a result, Johnny was allowed to present claims extending back to: (a) February 2008 for
his § 1983 claims; and (b) February 2009 for his SCTCA claims. Sandra was allowed to
present claims extending back to: (a) February 2013 for her § 1983 claims; and (b) February
2014 for her SCTCA claims.
12
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1. The Most Analogous State Law
We agree with the Timpsons that the district court erred in finding that their ADA
and RA claims alleging discrimination in the provision of public services and retaliation
were subject to the South Carolina Human Affairs Law’s one-year statute of limitations.
Although “the most analogous [state law claim for statute of limitations purposes] need not
be identical,” we have made clear that the controlling state legislation is that which
provides substantially “the same rights and remedies” as the ADA. Wolsky v. Med. Coll. of
Hampton Roads, 1 F.3d 222, 224–25 (4th Cir. 1993). In Semenova v. Maryland Transit
Administration, 845 F.3d 564 (4th Cir. 2017), we held that when a state’s anti-
discrimination statute “does not contain a cause of action for disability discrimination in
the provision of public services, the closer state-law analog to [an ADA] claim is a general
civil action.” Id. at 566.
The South Carolina Human Affairs Law prohibits disability discrimination in
employment, S.C. Code Ann. § 1-13-80, and in conducting certain medical examinations
or inquiries of a job applicant or employees, S.C. Code Ann. § 1-13-80, not in the provision
of public services. Moreover, South Carolina’s public accommodations statute provides
that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation . . . without discrimination or segregation on the ground of race, color,
religion, or national origin.” S.C. Code Ann. § 45-9-10(A) (emphasis added); id. § 45-9-
10(B)(3) (defining “public accommodation” as “any hospital, clinic, or other medical
facility which provides overnight accommodations”). That statute is silent about claims for
13
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disability discrimination. As a result, under Semenova, the district court erred in applying
the South Carolina Human Affairs Law’s statute of limitations rather than the three-year
period for general civil actions. See id. § 15-3-530(5). We first address the implications of
this error as it applies to Sandra before turning to Johnny’s claims.
Though the Timpsons vaguely assert that this decision prevented Sandra from
recovering for retaliatory acts before 2015, they mostly fail to specify what retaliation she
suffered or how she (and not Johnny) was harmed. See Opening Br. 38 (“Because of this
error, the jury was not allowed to award damages for retaliatory acts against Sandra before
2/23/2015, when Defendants concealed records, delayed Johnny’s discharge, refused to
provide records, reported to law enforcement that Sandra was exploiting her brother,[19]
[and] failed to investigate sexual assaults[.]”). The Timpsons’ sparse record cites offer little
guidance in our review. See Rodriguez-Machado v. Shinseki, 700 F.3d 48, 49–50 (1st Cir.
2012) (per curiam) (“Essentially, [counsel] is asking us to do one of two things: accept
what she says as gospel or mine the record ourselves to confirm the truth of her story—and
there is no reason for us to do either. . . . [D]oing [counsel’s] work for her is not an option,
since that would divert precious judge-time from other litigants who could have their cases
resolved thoughtfully and expeditiously because they followed the rules.”); United States
19
The only record citation to support this claim in the opening brief makes no
mention of such a report. See Opening Br. 19 (citing J.A. 2189 (detailing various incidents
involving Johnny while he was under the Board’s care)). There was a note in a case status
report suggesting that Angela Timpson (also Johnny’s sister) had told law enforcement that
she believed Sandra “was in the process of building a new home and . . . felt that [Johnny’s
complaints were] a means for Sandra Timpson to be able to take Johnny and be able to
access his finical [sic] monies.” J.A. 1758. The Timpsons did not name either Angela or
the Anderson County Sherriff’s Office (who authored the report) as Defendants.
14
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v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam) (explaining that “[j]udges are
not like pigs, hunting for truffles buried in [the record]”).
Still, Sandra appears to have made one potential claim for ADA and RA retaliation
that would be impacted by the district court’s statute of limitations ruling: that
Defendants—which ones is unclear—“failed to inform [her] of feasible alternatives under
the waiver.” Opening Br. 38. In the amended complaint, the Timpsons generally alleged
“Defendants have failed to inform Sandra of . . . feasible alternatives and to provide
sufficient services in the home so that she can return to work and so that her brother can
avoid institutionalization.” J.A. 258. “Sandra repeatedly complained about Defendants
[sic] conduct towards Johnny. In retaliation for those complaints the defendants withheld
and delayed services to Johnny for Sandra when she took him into her home” in August
2013. J.A. 259. The amended complaint concluded that “Defendants have retaliated against
persons, including Johnny and Sandra, who have advocated for waiver participants and
employees who have reported abuse, neglect and exploitation[, and] have experienced
reprisals, and these wrongful acts by Defendants have resulted in injury to Johnny and
Sandra.” J.A. 266; see also J.A. 2729 (Sandra’s affidavit claiming she “was never told that
family members or friends could be paid to provide personal care attendant hours or that if
[she] was appointed as Johnny’s guardian, [she] could not be paid to provide attendant
care”). Therefore, we vacate the district court’s dismissal of Sandra’s ADA and RA
retaliation claims that occurred between February 23, 2013, and February 23, 2015. On
remand, we direct Sandra to specify which Defendants, if any, she claims retaliated against
her during this period and to state, with specificity, how they did so.
15
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We affirm, however, the district court’s dismissal of Johnny’s claims because he
has failed to show how this ruling prejudiced him. The Timpsons vaguely allege in their
opening brief that, “[a]s a result of [the district court’s ruling], the jury also did not consider
Johnny’s pre-2010 claims for ongoing ADA and [RA] violations.” Opening Br. 38. They
make no mention of what these claims were or upon what facts they were based. The lone
reference in their opening brief to an incident during the 2008 through 2009 period
(incorporating the added two years Johnny’s ADA and RA claims would have received
had the district court applied the correct statute of limitations) was a claim that his
“surrogate was not informed of his elopements and threat to injure himself in 2008.”
Opening Br. 11. But this appears to be a reference to the consent-based claims the district
court expressly rejected because the Timpsons failed to allege any issue related to it in their
amended complaint. See J.A. 5811 (“[I]n the amended complaint there is no claim pled
involving consent,” meaning “anything related to consent is really not before the [c]ourt.”).
And the Timpsons have waived any challenge to this ruling by failing to raise it on appeal.
Therefore, Johnny has no ADA or RA claims for the additional time period.
2. The Discovery Rule
The Timpsons similarly failed in framing their arguments under the discovery rule.
See Young v. S.C. Dep’t of Corr., 511 S.E.2d 714, 718–19 (S.C. Ct. App. 1999) (applying
the discovery rule—that the statute of limitaitons begins to run when a cause of action
reasonably ought to have been discovered—to claims brought under the SCTCA). They
summarily assert, “The Lower Court erred in ruling that the state tolling statute and the
discovery rule were mutually exclusive, prohibiting Johnny from recovering for any injury
16
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prior to 2010 and Sandra from recovering for injuries prior to 2015.” Opening Br. 43. But
they never state with any specificity what those injuries were or how they would have
supported cognizable claims. Because they have claimed no prejudice from the district
court’s ruling, we affirm on this ground as well.
B. Limited and Excluded Testimony
Moving to the Timpsons’ second point of error, they claim the court improperly:
(1) limited Johnny’s testimony; (2) limited and excluded the hybrid witnesses’ testimonies;
and (3) prevented them from taking then-Ambassador Haley’s deposition. We review each
in turn, cognizant that “evidentiary rulings are entitled to substantial deference and will not
be reversed absent a clear abuse of discretion,” which occurs “only when the district court
act[s] arbitrarily or irrationally.” United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994)
(internal quotation marks omitted).
1. Johnny’s Testimony
A witness’s competency to testify is a threshold question of law lying exclusively
in the trial court’s discretion. United States v. Odom, 736 F.2d 104, 111 (4th Cir. 1984).
When a party questions a witness’s competency, the trial court must satisfy itself that the
witness is competent to testify. Id. Though it did not need to conduct a formal hearing, the
court did so here and found it “reasonable to question whether or not [Johnny] possesse[d]
the legal competence to testify.” J.A. 4783.
In response to the court’s questions at the hearing, Johnny correctly stated his name
and age, recognized the importance of telling the truth, identified the current President of
the United States, and confirmed that he lived with his sister. He could not, however, name
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his state of residence, state the current year or his year of birth, identify his claims with any
particularity beyond the fact that they related to the arm-burning incident, or define what
it meant to swear an oath. The transcript indicates several times where Johnny’s responses
were “inaudible” or the court otherwise struggled to understand him. See J.A. 4784–88,
4813.
After hearing argument, the court found that Johnny met “the minimum
qualifications of competence to the extent that he underst[ood] the importance of telling
the truth, and that telling the truth is the right thing to do, that lying is wrong, and that . . .
not telling the truth would carry with it negative consequences.” J.A. 4814. And that was
enough “to get over the low bar” of competency. Id. But the court also determined that
Johnny was “not a reliable historian based upon his response . . . about his date of birth,
and his inability to tell [the court] what state he lives in and some of the other responses.”
Id. As such, the court found that the probative value of Johnny’s testimony would be
substantially outweighed by the prejudice involved:
[There would be] confusion to the jury in that . . . it would likely result in
both the direct and cross examinations being nothing more than testimony by
the respective attorneys with Mr. Timpson having limited ability to
communicate either his agreement or disagreement with what the attorney
was propounding in their question.
J.A. 4815. As a result, the court allowed the Timpsons to call Johnny, but limited his
testimony to “very basic things” like “his name, where he lives, who [he] lives with, how
long he’s lived there,” and “if his arms were injured.” Id.The district court did not abuse its discretion in doing so. See Odom, 736 F.2d at
111 (stating that the court may consider “the witness’ demeanor and testimony at the time,
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his ability to recall, his knowledge of the facts, and his ability to narrate, then resolve the
issue as one of credibility more than one of competency”). Indeed, Johnny’s testimony
during trial supported the court’s decision to limit it. For example, during his direct
examination, when asked how old he was, Johnny responded:
A: I’m 50.
Q: Sir?
A: 50. I 51. I’m 50. I’m 58.
Q. Are you 61?
A: 58.
Q: You think you’re 58.
A: (Witness moves head up and down.)
J.A. 5480. Johnny was 61 years old at the time.
And like the preliminary hearing, the courtroom reporter repeatedly stated during
Johnny’s trial testimony that he was “undiscernible” and that she could not understand him.
See J.A. 5481–82, 5485–86, 5488, 5490. When asked if he could read and write, Johnny
responded, “Yes. No. . . . I can read. I can read. I can read.” J.A. 5485. But when asked to
do so, he responded “I didn’t learn that.” J.A. 5486. Given these inconsistent answers to
simple questions coupled with the difficulty in understanding Johnny, we have no difficulty
concluding the district court did not abuse its discretion in limiting his testimony.
The Timpsons have also failed to show they were prejudiced by the court’s ruling.
They have made no proffer of what facts Johnny would have testified about that were not
already in evidence. Nor have they detailed how those facts would have supported their
claims. See Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 542–43 (4th Cir. 2004) (finding
no abuse of discretion as to the denial of a discovery request where the complaining party
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“ha[d] not been substantially prejudiced”). Therefore, we affirm the district court’s
limitation of Johnny’s testimony during trial on this alternate ground as well.
2. The Hybrid Witnesses
Nor did the district court abuse its discretion in excluding in part and limiting in part
the testimonies of the Timpsons’ hybrid witnesses. Federal Rule of Civil Procedure
26(a)(2)(B) requires any party who identifies a witness it may call at trial to include “a
written report—prepared and signed by the witness—if the witness is one retained or
specially employed to provide expert testimony in the case.” See also Fed. R. Civ. P. 26
advisory committee’s note to 1993 amendment (“The requirement of a written report in
paragraph (2)(B) . . . applies only to those experts who are retained or specially employed
to provide [expert] testimony . . . or whose duties as an employee of a party regularly
involve the giving of such testimony.”).
Hybrid witnesses—fact witnesses with expertise that will inform their testimony—
do not fall under Rule 26(a)(2)(B)’s purview. But most witnesses do not qualify as hybrid
witnesses. See Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d
355, 371 (7th Cir. 2017) (“[H]ybrid fact/expert witnesses . . . must testify from the personal
knowledge they gained on the job,” and “[t]he district court certainly may preclude these
witnesses from testifying beyond the scope of facts they learned and opinions they formed
during the course of their project duties.”); Downey v. Bob’s Disc. Furniture Holdings,
Inc., 633 F.3d 1, 6 (1st Cir. 2011) (holding that a hybrid witness whose opinion testimony
arose “not from his enlistment as an expert but, rather, from his ground-level involvement
in the events giving rise to the litigation” fell “outside the compass of Rule 26(a)(2)(B)”).
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If a party wants to present opinion evidence through a hybrid witness, it still must
disclose: “(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Failure to comply
with either requirement typically will result in mandatory exclusion. See Fed. R. Civ. P.
37(c)(1); S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595–96
(4th Cir. 2003).
The Timpsons’ hybrid witness disclosures failed to satisfy Rule 26(a)(2)(C)(ii). The
disclosures included only “the subject matter on which” the Timpsons expected
McPherson, Mullis, and Thomas to testify. Fed. R. Civ. P. 26(a)(2)(C)(i); see J.A. 373–75,
378–79. At no point, however, did the disclosures set out “a summary of the facts and
opinions to which” each was expected to testify. Fed. R. Civ. P. 26(a)(2)(C)(ii). And the
Timpsons cite no record evidence in their briefs before us to support their broad claim that
they satisfied Rule 26(a)(2)(C)’s requirements in full. Thus, the district court did not abuse
its discretion in preventing the claimed hybrid witnesses from providing expert testimony.
But even if the Timpsons had properly disclosed McPherson, Mullis, and Thomas,
the district court would not have erred in holding they failed to qualify as hybrid witnesses.
None had any relevant factual evidence pertaining to the Timpsons’ claims. McPherson
and Thomas had never met Johnny. And Mullis had only interacted with him briefly
seventeen years before trial (well outside the statutes of limitations). Thus, their only
involvement in the case occurred in the context of having been hired to provide their
opinions, meaning the Timpsons should have produced expert reports for each under Rule
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26(a)(2)(B). Because they failed to do so, the district court properly excluded these
witnesses from offering their expert opinions during trial.
3. Deposing Then-Ambassador Nikki Haley
We next consider the Timpsons’ argument that the district court erred in denying
their request to depose then-Ambassador Haley. “[F]ederal courts have consistently held
that, absent extraordinary circumstances, a government decision-maker will not be
compelled to testify about [her] mental processes in reaching a decision, including the
manner and extent of [her] study of the record and [her] consultations with subordinates.”
Franklin Sav. Ass’n v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991) (internal quotation marks
omitted). That practice was especially appropriate here because Haley, in her role as
Governor, was “not an official with responsibility for” decisions relating to “service levels
of waiver participants,” determinations of services for specific patients, or “provid[ing]
funding for [patients] to live outside of a congregate setting.” Kobe v. Haley, 666 F. App’x
281, 299 (4th Cir. 2016) (per curiam). Nor did she “have the authority to change them.” Id.What’s more, the Timpsons presented no theory (viable or otherwise) for proceeding
against then-Ambassador Haley in her individual capacity. See J.A. 446 (the Timpsons
suggesting they had a right to take then-Ambassador Haley’s deposition “to determine
whether she may [have] be[en] liable, in her individual capacity, for any of the claims
alleged in the amended complaint”).
Thus, the district court did not abuse its discretion in fashioning a direct, but limited
approach to determine whether then-Ambassador Haley’s deposition had any potential to
lead to relevant, admissible evidence in this case. The Timpsons failed to seize on this
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opportunity and squandered their ten interrogatories on matters unrelated to her knowledge
of Johnny or decisions involving his care. Nor have they shown on appeal why then-
Ambassador Haley’s continued presence here is anything more than an attempt to uncover
some unknown claim against her in her individual capacity. At bottom, we perceive no
error in the district court’s denial of this request.
C. The SCTCA Claims
The Timpsons also challenge two aspects of the district court’s jury instructions for
their SCTCA claims. “We review a district court’s decision to give a particular jury
instruction for abuse of discretion, and review whether a jury instruction incorrectly stated
the law de novo.” United States v. Miltier, 882 F.3d 81, 89 (4th Cir. 2018) (internal citations
omitted).
First, the Timpsons argue the court erred in instructing the jury that the Board and
DDSN could be liable under the SCTCA only if they committed “gross negligence,” that
is, if they failed “to exercise slight care” or consciously failed “to do something which
[was] incumbent upon [them] to do or [did] [some]thing intentionally that [they] ought not
to [have] do[ne].” J.A. 3714. The Timpsons maintain that, under Madison ex rel. Bryant v.
Babcock Center, Inc., 638 S.E.2d 650 (S.C. 2006), the appropriate standard required the
Board and DDSN to provide “reasonable care and treatment,” which “may be established
and defined by the common law, statutes, administrative regulations, industry standards,
or a defendant’s own policies and guidelines.” Id. at 659–60. Finding no error in the district
court’s instruction, we affirm.
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The SCTCA “governs all tort claims against governmental entities and is the
exclusive civil remedy available in an action against a governmental entity or its
employees.” Shirley’s Iron Works, Inc. v. City of Union, 743 S.E.2d 778, 783 (S.C. 2013);
see also S.C. Code Ann. § 15-78-20(b) (“The remedy provided by this chapter is the
exclusive civil remedy available for any tort committed by a governmental entity, its
employees, or its agents[.]”). To that end, the statute provides several exceptions to
liability, including a provision establishing that a “governmental entity is not liable for a
loss resulting from” “responsibility or duty including but not limited to supervision,
protection, control, confinement, or custody of any student, patient, prisoner, inmate, or
client of any governmental entity, except when the responsibility or duty is exercised in a
grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (emphasis added). Thus, as the
district court correctly found, the statute expressly establishes gross negligence as the
applicable standard of care for the Timpsons’ claims stemming from Johnny’s care in the
group homes. And, as the Supreme Court of South Carolina clarified in Etheredge v.
Richland School District One, 534 S.E.2d 275 (S.C. 2000), “[g]ross negligence is the
intentional conscious failure to do something which it is incumbent upon one to do or the
doing of a thing intentionally that one ought not to do. It is the failure to exercise slight
care.” Id. at 277 (emphasis added) (internal citations omitted).
Contrary to the Timpsons’ argument, Madison did not change this analysis. There,
the Supreme Court of South Carolina found that, by “accept[ing] the responsibility of
providing care, treatment, or services to a mentally retarded or disabled client,” DDSN
“ha[d] a duty to exercise reasonable care in supervising the client and providing appropriate
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care and treatment to the client.” Madison, 638 S.E.2d at 660. But as the court made clear,
[w]hen a governmental entity owes a duty of care to a plaintiff under the
common law and other elements of negligence are shown, the next step is to
analyze the applicability of exceptions to the waiver of immunity contained
in S.C. Code Ann. § 15-78-60 which are asserted by the governmental entity.
Id. (emphasis added). And in proceeding to that next step—which, as quoted above,
provides that a governmental agency is not liable for “responsibility or duty including but
not limited to supervision, protection, control, confinement, or custody of any . . . patient
. . . or client of any governmental entity, except when the responsibility or duty is exercised
in a grossly negligent manner,” S.C. Code § 15-78-60(25) (emphasis added)—the Supreme
Court of South Carolina simply determined that whether DDSN had acted in a grossly
negligent manner was a factual issue for the jury. It did not, as the Timpsons would have
it, remove the gross negligence standard from the SCTCA’s exceptions to the waiver of
immunity provision (i.e., the second step of the analysis). Thus, the district court correctly
instructed the jury as to the appropriate standard of care.
For their second SCTCA challenge, the Timpsons claim the district court erred in
instructing the jury that DDSN could not be held liable unless Tiny Greer’s employees
were also its employees. But in Young v. South Carolina Department of Disabilities &
Special Needs, 649 S.E.2d 488 (S.C. 2007)—the decision on which the district court relied
in framing this instruction—the Supreme Court of South Carolina made clear that “[t]he
plain language of the statutes and ordinances establishes the Board as a separate entity from
DDSN and grants the Board the authority to hire employees.” Id. at 491. And because “the
Board has been established as a separate entity with powers and duties separate from
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DDSN. . . , the doctrine of non-delegable duty does not apply.” Id. at 492. In other words,
DDSN is not liable for the conduct of the Board or the Board’s employees (including those
who work at Tiny Greer). Thus, the district court did not abuse its discretion in framing its
instruction on this issue.
D. The ADA and RA Claims
For their next point of error, the Timpsons contend the district court improperly
dismissed their ADA and RA claims and wrongly excluded evidence of South Carolina’s
financial resources. See generally Olmstead, 527 U.S. at 603, 607 (“[T]he resources
available to the State and the needs of others with mental disabilities” may be considered
in determining whether providing requested services would “entail a fundamental
alteration of the State’s services and programs.” (alterations and internal quotation marks
omitted)).
For context, the RA provides, “No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). Title II of the ADA provides
that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Title II defines “public entity” as, inter alia, “any State or local government” or
“any department, agency, [or] special purpose district.” Id. § 12131(1). “To the extent
possible, we construe the ADA and [RA] to impose similar requirements. Thus, despite the
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different language these statutes employ, they require a plaintiff to demonstrate the same
elements to establish liability.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,
461 (4th Cir. 2012) (internal citations omitted).
We need not reach the merits of the Timpsons’ claims, however, because their
opening brief on this issue—much like their amended complaint below—fails to identify:
(1) either the specific conduct complained of or which Defendant allegedly engaged in any
given unlawful action; (2) how that conduct injured either Johnny or Sandra; or (3) how
that conduct violated either statute. Nor do the Timpsons present any argument that they
were harmed by the dismissal of their RA claims. Thus, they have presented no basis for
reversing the judgment below, Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002)
(“[T]his Court normally views contentions not raised in an opening brief to be waived.”),
and have “failed to point to persuasive indications that any one of [their] bases for reversal
of the district court’s judgment has merit,” First Pros. Ins. Co. v. Sutton, 607 F. App’x 276,
290 (4th Cir. 2015) (unpublished).
The Timpsons’ appeal to Olmstead is also unavailing. A state that decides to provide
services under the Medicaid Act must do so “in the most integrated setting appropriate to
the needs of qualified individuals.” 28 C.F.R. § 35.130(d). But “the State generally may
rely on the reasonable assessments of its own professionals in determining whether an
individual meets the essential eligibility requirements for habilitation in a community-
based program. Absent such qualification, it would be inappropriate to remove a patient
from the more restrictive setting.” Olmstead, 527 U.S. at 602 (internal quotation marks
omitted). The Supreme Court expressly did not hold “that the ADA imposes on the States
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a standard of care for whatever medical services they render, or that the ADA requires
States to provide a certain level of benefits to individuals with disabilities.” Id. at 603 n.14
(internal quotation marks omitted). And the Timpsons made no showing or assertion in
their opening brief as to how South Carolina’s purportedly improper diversion of funds had
any effect on Johnny’s treatment and care. See Carter, 283 F.3d at 252 n.11. We therefore
affirm on this ground as well.
E. The § 1983 Claims
Finally, the Timpsons argue that the district court erred by excluding evidence of
Defendants’ alleged § 1983 violations and ruling that any official who lacked knowledge
of Johnny or the Board-operated groups homes in which he resided could not be held liable
for the wrongdoing of that officials’ subordinates. Missing from the Timpsons’ argument,
however, is the long-recognized principle that there is no doctrine of respondeat superior
under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978); see also
Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984) (reasoning that liability is premised not
on respondeat superior but on “a recognition that supervisory indifference or tacit
authorization of subordinates’ misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care”).
Public administrators (such as the individual Defendants here) may be liable in their
individual capacities only for their personal wrongdoing or supervisory actions that
violated constitutional norms. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). A plaintiff
must satisfy three elements to establish supervisory liability under § 1983:
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(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury to citizens like the plaintiff; (2) that the
supervisor’s response to that knowledge was so inadequate as to show
deliberate indifference to or tacit authorization of the alleged offensive
practices; and (3) that there was an affirmative causal link between the
supervisor’s inaction and the particular constitutional injury suffered by the
plaintiff.
Id. (internal quotation marks omitted).
Establishing a “pervasive and unreasonable” risk of harm under the first element
“requires evidence that the conduct is widespread, or at least has been used on several
different occasions and that the conduct engaged in by the subordinate poses an
unreasonable risk of harm of constitutional injury.” Id. To prove “deliberate indifference”
under the second element, the plaintiff typically must show a supervisor’s “continued
inaction in the face of documented widespread abuses.” Slakan, 737 F.2d at 373. The
plaintiff assumes a heavy burden of proof on this point because, ordinarily, he cannot
satisfy it
by pointing to a single incident or isolated incidents, for a supervisor cannot
be expected to promulgate rules and procedures covering every conceivable
occurrence within the area of his responsibilities. Nor can he reasonably be
expected to guard against the deliberate criminal acts of his properly trained
employees when he has no basis upon which to anticipate the misconduct.
Id. at 373 (internal citation omitted). Finally, under the third element, causation is
established when the plaintiff proves “an affirmative causal link”—a concept quasi-
analogous to proximate cause—between the supervisor’s inaction and the harm suffered.
Id. at 376.
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Against this backdrop, the Timpsons have failed to show reversible error. They
neither pleaded nor proved any action or inaction by any of the individually named
Defendants that caused them harm. Indeed, the Timpsons’ § 1983 claim did not mention
six of the ten individual Defendants by name. And the four they did mention were
referenced only once, in a boilerplate statement that alleged no wrongdoing. See J.A. 275
(“These practices are so permanent and well settled as to constitute custom or usage with
the force of law and the Defendants Haley, Danielson, Buscemi and Soura are persons who
have final policymaking authority.” (internal quotation marks omitted)). Nor did the
Timpsons make any evidentiary showing of personal involvement by any individual in any
complained-of action in response to Defendants’ motion for summary judgment. See J.A.
4148 (“As to the merits of Plaintiffs’ Section 1983 claims, the [c]ourt granted summary
judgment and directed verdicts because the Plaintiffs offered no actual evidence that any
officials violated the Constitution.”).
And the Timpsons made no substantive argument to the contrary in their opening
brief. See Opening Br. 59 (“Haley, McMaster, Soura, Buscemi and Thompson are liable
for violations committed by their subordinates because they were empowered to propose
rules and regulations for the government of the State system and they shouldered specific
responsibility for classifying facilities and developing programs so as to permit the proper
segregation and treatment of participants according to their character and mental
condition.” (cleaned up)). We have affirmed a district court’s decision denying a plaintiff’s
request to add defendants when he “failed to allege facts sufficient to demonstrate any
personal or supervisory wrongdoing by the administrators.” Clark v. Md. Dep’t of Pub.
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Safety & Corr. Servs., 316 F. App’x 279, 282 (4th Cir. 2009) (per curiam); see Shaw, 13
F.3d at 799. We similarly affirmed a grant of summary judgment when the plaintiff “failed
to allege any specific wrongful action on the part of” a supervisor. Clark, 316 F. App’x at
282; Slakan, 737 F.2d at 376. This case is no different. The Timpsons made no showing of
liability for acts by any of the individual Defendants.
Finally, as to the agency Defendants, the Supreme Court has made clear that “neither
a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As a result, the district court properly
entered judgment in their favor. And the Timpsons have offered no justification (persuasive
or otherwise) to reverse. See Carter, 283 F.3d at 252 n.11.
III.
For these reasons, the district court’s judgment is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.
31