Matthew Parkins v. Henry McMaster

Opinion

USCA4 Appeal: 23-1341 Doc: 93 Filed: 10/15/2024 Pg: 1 of 9

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1341

MATTHEW THOMAS PARKINS, by and through Andrew Turner, his next of friend and Guardian ad Litem; MATT PARKINS, individually,

Plaintiffs – Appellants,

v.

HENRY DARGAN MCMASTER; MICHAEL LEACH; ROBERT KERR; SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, a/k/a SCDSS; TOMEKIA MEANS; CALVIN HILL; SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, a/k/a DHHS; JOSHUA BAKER; ALTHEA MYERS; SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, a/k/a DDSN; PATRICK J. MALEY; LAURENS COUNTY DISABILITIES AND SPECIAL NEEDS BOARD, a/k/a LCDSNB; UNION MEDICAL CENTER, a/k/a UMC; TONYA RENEE WASHINGTON, MD; JAN BRADLEY; JOHN ROE; JANE ROE; SOUTH CAROLINA; OFFICE OF THE GOVERNOR; MICHELLE GOUGH FRY; SPARTANBURG REGIONAL HEALTH CARE SYSTEM,

Defendants – Appellees.

Appeal from the United States District Court for the District of South Carolina at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:21-cv-02641-HMH)

Submitted: August 7, 2024 Decided: October 15, 2024

Before WILKINSON, KING and AGEE, Circuit Judges.

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ON BRIEF: Patricia Logan Harrison, Cleveland, South Carolina, for Appellants. Perry D. Boulier, Joshua T. Thompson, BOULIER THOMPSON & BARNES, LLC, Spartanburg, South Carolina, for Appellees Spartanburg Regional Health Care System; Union Medical Center; Tonya Reese Washington, M.D.; and Jan Bradley. Patrick J. Frawley, DAVIS FRAWLEY, LLC, Lexington, South Carolina, for Appellees Michael Leach, Calvin Hill, and Tomekia Means. William H. Davidson, Kenneth P. Woodington, DAVIDSON & WREN, P.A., Columbia, South Carolina, for Appellees Joshua Baker, Robert Kerr, SCDHHS, Patrick Maley, SCDDSN, and Laurens County DSN Board. Thomas A. Limehouse, Jr., Chief Legal Counsel, Wm. Grayson Lambert, Senior Litigation Counsel, OFFICE OF THE GOVERNOR OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees Governor McMaster and the Office of the Governor.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Matthew Thomas Parkins (“Parkins”) appeals the district court orders dismissing

some claims and granting judgment against him as to all other claims. In what appears to

be a recurring theme of Parkins’ attorney, the original complaint cited vague and sprawling

allegations giving rise to numerous state and federal claims against over two dozen

defendants ranging from individual providers to the Governor of South Carolina and from

local agencies to the South Carolina agency charged with overseeing the Medicaid waiver

program. The district court methodically considered each claim, eventually granting Rule

12(b)(6) or 12(c) dismissals as to some claims and Defendants and Rule 56(a) summary

judgment as to the remaining claims and Defendants. Parkins now appeals, and for the

reasons set out below, we affirm.

I.

Parkins, who is in his twenties, is enrolled in South Carolina’s Medicaid waiver

program as a result of an adrenal disorder that has affected his cognitive and physical

development. He has limited ability to ambulate without the assistance of a wheelchair and

requires daily medication without which he may suffer domino-effect complications. As

an enrollee in the Medicaid waiver program, Parkins is able to avoid institutionalized care

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and receive services in his home. 1 Since enrolling in the waiver program, Parkins has lived

with his father, who has provided some of those services.

In mid-April 2018, individuals at Parkins’ school observed that he had unexplained

bruises on his thighs. Consistent with state law, they reported their concerns to local law

enforcement who followed up by calling in the South Carolina Department of Social

Services (“DSS”) to investigate suspected abuse. DSS employee Tomekia Means was

assigned to investigate further, but in the interim local law enforcement placed Parkins in

emergency protective services and transported him to Union Medical Center (“UMC”) for

care. At UMC, Dr. Tonya Renee Washington was charged with caring for Parkins.

Two days after Parkins was placed in emergency care and transferred to UMC, a

state family court judge determined probable cause existed to retain custody of Parkins

while DSS investigated. The state court ordered an expedited investigation and set a merits

hearing for the following month. The court simultaneously authorized DSS to maintain

custody of Parkins and to provide any requisite care during that time.

Five days before the scheduled merits hearing in state court, Parkins was returned

to his father’s custody because DSS had completed its investigation and concluded that

there was insufficient evidence of abuse or neglect to remove him from the home for a

longer period. Thereafter, the state court canceled the scheduled merits hearing and

dismissed the matter.

1 The Medicaid waiver program was established under 42 U.S.C. § 1396n(c) and is administered by the South Carolina Department of Health and Human Services (“DHHS”).

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In 2021, Parkins filed a seventy-two page complaint in state court alleging numerous

claims against over two-dozen defendants that can be broadly sorted into four categories:

(1) claims challenging how South Carolina agencies and officials run the Medicaid waiver

program; (2) claims alleging that Parkins was improperly placed in emergency protective

custody in the first instance; (3) claims alleging a failure to provide adequate notice to and

coordination with Parkins’ family members and regular treating physicians to ensure

proper medical and non-medical care during the DSS investigation; and (4) claims alleging

that during the DSS investigation, various defendants conspired to disenroll Parkins from

the Medicaid waiver program and transfer him to institutionalized care. 2 After the

Defendants removed the case to the U.S. District Court for the District of South Carolina,

the district court ordered Parkins to file an amended complaint that complied with the

“short and plain statement” standard and identified with specificity the allegations against

each defendant as to each claim. See Fed. R. Civ. P. 8(a). The amended complaint pursued

the above theories of relief, with some variations, by alleging (1) violations of Title II of

the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act; (2)

2 Parkins is named as a plaintiff “by and through Andrew Turner, his next of friend and Guardian ad Litem.” J.A. 120. Parkins’ father (Matt Parkins) is also a named plaintiff who has raised a number of claims arising from the same underlying events alleging violations of his own rights. For simplicity, the opinion refers to all claims in this suit as being brought by Parkins.

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violations of § 1983 (arising from violations of the ADA and due process clauses of the

United States Constitution); (3) civil conspiracy; and (4) gross negligence. 3

As noted, the district court issued multiple orders disposing of claims and

Defendants, eventually dismissing or granting judgment to all Defendants as to all claims.

Parkins ex rel. Turner v. South Carolina, No. CV 7:21-2641-HMH, 2022 WL 524895

(D.S.C. Feb. 22, 2022) (Rule 12(b)(6) motion to dismiss and Rule 12(c) motion for

judgment on the pleadings); 2022 WL 610398 (D.S.C. Mar. 1, 2022) (Rule 54(b) motion

to reconsider); 2022 WL 19333417 (D.S.C. Apr. 5, 2022) (Rule 54(b) motion to

reconsider); and 2023 WL 2248325 (D.S.C. Feb. 27, 2023) (Rule 56(a) motion for

summary judgment).

Parkins noted a timely appeal, and the Court has jurisdiction under 28 U.S.C.

§ 1291.

II.

In his opening brief, Parkins raises sweeping and conclusory arguments alleging a

vast conspiracy between the defendants, casting aspersions on how the South Carolina

Medicaid waiver program is run and attempting to connect this broader scheme to how

Parkins was allegedly treated during his emergency placement into DSS custody. We have

carefully reviewed the briefs’ arguments and the district court’s orders, and find almost no

3 Parkins has not purported to challenge the dismissal of additional claims; because those claims are therefore not before us on appeal, we do not discuss them further.

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nexus between the arguments on appeal and the bases for the district court’s resolution of

each claim. In short, with one debatable exception, the opening brief fails to grapple with

the grounds the district court relied on to dismiss the claims. As such, Parkins fails to

articulate a basis for reversing the unfavorable judgments. Under our clear precedent, this

constitutes waiver and forecloses review on the merits of the arguments advanced on

appeal. See United States ex rel. Taylor v. Boyko, 39 F.4th 177, 199 (4th Cir. 2022) (stating

that a party waives appellate review of a claim when the opening brief “does not dispute

the district court’s [dispositive] finding[s]”); Grayson O. Co. v. Agadir Int’l LLC, 856 F.3d

307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening

brief or by failing to develop its argument—even if its brief takes a passing shot at the

issue.” (cleaned up)); see also Timpson ex rel. Timpson v. Anderson Cnty. Disabilities &

Special Needs Bd., 31 F.4th 238, 256–57 (4th Cir. 2022) (concluding appellants’ arguments

were waived where the brief “presented no basis for reversing the judgment below”).

To the limited extent the opening brief does not waive appellate review of the district

court’s decisions, we affirm the district court and find no reversible error. The opening

brief asserts that the district court applied the wrong standard of care in considering the

gross negligence claim. Specifically, it contends that the district court erred by holding

defendants to “slight care” when they should have been held to “reasonable care.” See

Opening Br. 61. Even though this argument is likely preserved for merits review, it is

squarely foreclosed by binding circuit precedent. See Timpson, 31 F.4th at 255 (holding

that under the South Carolina Tort Claims Act—which provides the exclusive remedy for

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torts against governmental actors—only gross negligence claims can proceed, and that

claim requires “the failure to exercise slight care” (cleaned up) (emphasis in original)).

We highlight this particular issue as a preserved, but foreclosed, argument because

it calls to the forefront a defalcation present in this case that we have seen before with

Parkins’ counsel. Not only is counsel responsible as a general matter for knowing binding

precedent when briefing matters before this case, but named counsel, Patricia Logan

Harrison, had a particular reason for knowing about our holding in Timpson: she was also

named counsel in that case. Yet the opening brief in this case reiterates nearly the same

argument she made in Timpson, relying on the same case, without acknowledging that we

rejected this argument in Timpson and without caveating her argument as an attempt to

preserve an issue that is nonetheless precluded by existing precedent. Instead, the brief

presents it as an open question. Equally troubling, this is not the first case in which

Harrison’s conclusory arguments on brief have failed to challenge the grounds on which

the district court ruled against her clients, and thus have resulted in waiver of most if not

all of an appeal. See Stogsdill v. S.C. Dep’t of Health & Hum. Servs., No. 22-1069, 2023

WL 3845313, at *2 (4th Cir. June 6, 2023); Timpson, 31 F.4th at 256–57. Nor are we the

only court to express concern about Harrison’s scattershot approach to litigation and her

persistence in pressing foreclosed and dubious arguments. Estate of Valentine ex rel. Grate

v. South Carolina, C/A No. 3:18-00895-JFA, 2022 WL 943062, at *9–11 (D.S.C. Mar. 29,

2022) (sanctioning Harrison).

Though we have reservations about whether counsel’s conduct complies with her

ethical duties when practicing before the Court, we have elected not to sua sponte refer

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counsel for potential disciplinary action at this time. See Fed. R. App. P. 46; Fourth Circuit

Local Rule 46(g). But we hereby admonish Harrison that any future filings before the Court

following this pattern may result in referral for disciplinary proceedings pursuant to Rule

46(b)–(c) and Local Rule 46(g). Her current method of representing her vulnerable clients

does them a significant disservice.

For the reasons set out above and as articulated in the district court’s various orders

in this case, we affirm the decisions and judgment of the district court. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this Court and argument would not aid the decisional process.

AFFIRMED