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, Defendants.
No. 20-1163
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 7, 2022
PUBLISHED
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.
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 Governor3—to operate the state‘s treatment and training programs for individuals with intellectual and related disabilities. Relevant here,
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.”
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
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.
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 individuals8 and four agencies9) 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 Act10; and (5) violations of various Medicaid statutory and regulatory rights pursuant to
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
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
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
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:
ADA Claims13 against the Board, DDSN, DHHS, Thrive, and Governor McMaster; - SCTCA Claims against the Board, DDSN, DHHS, Thrive, and Governor McMaster; and
- 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
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
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
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 F.3d 342, 347 (4th Cir. 2011); accord McCullough v. Branch Banking & Tr. Co., 35 F.3d 127, 129 (4th Cir. 1994).17
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.
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, 566 (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,
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
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.
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 limitations 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
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
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,
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
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.
Hybrid witnesses—fact witnesses with expertise that will inform their testimony—do not fall under
The Timpsons’ hybrid witness disclosures failed to satisfy
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
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
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.
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
[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,”
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
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.”
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.”
E. The § 1983 Claims
Finally, the Timpsons argue that the district court erred by excluding evidence of Defendants’ alleged
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
(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.
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. Safety & Corr. Servs., 316 F. App‘x 279, 282 (4th Cir. 2009) (per curiam); see Shaw, 13 F.3d at 799.
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
III.
For these reasons, the district court‘s judgment is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.