Johnny Timpson v. Anderson County Disabilities

31 F.4th 238

Opinion

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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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

17 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,

18 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 19 “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)”).

20 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

21 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

22 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.

23 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

24 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

25 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

26 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

27 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:

28 (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.

29 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.

30 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.