Doe v. Kidd

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1191

SUE DOE,

Plaintiff - Appellant,

v.

LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; ROBERT KERR;
SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants – Appellees,

v.

SANDRA RAY,

Guardian ad Litem Plaintiff.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:03-cv-01918-MBS)

Argued: December 8, 2010 Decided: March 24, 2011

Before MOTZ, KING, and GREGORY, Circuit Judges.

Reversed in part, affirmed in part, and remanded with
instructions by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge King joined.

ARGUED: Patricia L. Harrison, Columbia, South Carolina,
for Appellant. Kenneth Paul Woodington, DAVIDSON & LINDEMANN,
PA, Columbia, South Carolina, for Appellees. ON BRIEF: William
H. Davidson, II, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
GREGORY, Circuit Judge:

Sue Doe, the plaintiff-appellant, is a young woman with

developmental disabilities, including epilepsy, mild mental

retardation, and cerebral palsy. She filed this 42 U.S.C.

§ 1983 action against the South Carolina Department of

Disabilities and Special Needs (“DDSN”), the South Carolina

Department of Health and Human Services (“DHHS”), as well as

Linda Kidd, Stan Butkus, Kathi Lacy and Robert Kerr, in their

official capacities as state administrators (collectively,

“Defendants”). The suit alleges that Defendants violated

various sections of the Medicaid Act related to the provision of

services. In an earlier appeal, Doe v. Kidd, 501 F.3d 348 (4th

Cir. 2007) (“Doe I”), this Court affirmed in part, and reversed

in part the district court’s grant of summary judgment for

Defendants. Only one of Doe’s original claims survived that

appeal, her allegation that Defendants had not complied with the

reasonable promptness provision of the Medicaid Act. Id. at

357.

On remand, the district court again granted summary

judgment in favor of Defendants. Doe subsequently filed this

timely appeal challenging (1) the dismissal of her reasonable

promptness claim; (2) the denial of her motion to amend the

complaint; and (3) the denial of her request for attorney’s

3
fees. 1 Because we find that Defendants have violated Doe’s

rights under the Medicaid Act as a matter of law, we reverse the

district court and grant summary judgment in her favor.

Accordingly, Doe may recover attorney’s fees. However, the

district court properly denied her motion to amend.

I.

We review a grant of summary judgment de novo, and present

all facts and reasonable inferences in the light most favorable

to the nonmoving party. Varghese v. Honeywell Int’l, Inc., 424

F.3d 411, 416 (4th Cir. 2005). The underlying material facts

are not in dispute, and the extensive history of this case is

laid out in further detail in our previous opinion. See

generally Doe I, 501 F.3d at 351-53. DHHS is the South Carolina

state agency responsible for administrating Medicaid programs.

DDSN supervises the treatment and training of South Carolinians

1
Doe makes passing references in her opening brief to the
district court’s orders granting Defendants’ motion for a
protective order and limiting discovery. (See, e.g.,
Appellant’s Br. at 1.) But nowhere in the body of her brief
does she present any legal argument in support of her assertions
that the district court was in error as to these discovery
matters. Federal Rule of Appellate Procedure 28(a)(9)(A)
requires that the argument section of an appellant’s opening
brief contain the “appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies.” Because Doe has failed to
adhere to this fundamental rule, she has abandoned these
challenges on appeal.

4
with mental retardation and related disabilities. Because South

Carolina accepts Medicaid funding, these agencies are bound to

comply with all related federal laws and regulations. Wilder v.

Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990).

In July 2002, after unsuccessfully applying twice in the

past, Doe filed a third application for DDSN services under the

Medicaid waiver program pursuant to 42 U.S.C. § 1396n(c) (2000),

whereby a state may waive the requirement that persons with

mental retardation or related disabilities live in an

institution in order to receive certain services. The waiver

application process has three steps: first, DHHS needed to

decide whether Doe was eligible for any Medicaid funding; next,

DDSN was required to evaluate Doe to determine what services she

was entitled to; and, finally, DDSN had to decide the most

appropriate “level of care” for Doe as well as the least

restrictive environment or care setting. These settings may

include, listed in order of the least to the most restrictive

placement: (1) a Supervised Living Program II (“SLP II”), an

apartment where recipients of DDSN services reside together;

(2) a Community Training Home I (“CTH I”), a private foster home

where a services recipient resides with a family, one member of

whom is a trained caregiver; or (3) a Community Training Home II

(“CTH II”), a group home with live-in caregivers for four or

fewer recipients. Appeals from DDSN decisions are taken to a

5
DHHS hearing officer and thereafter may be appealed to a South

Carolina administrative law judge.

In December 2002, without having made a final decision as

to Doe’s eligibility for a waiver, DDSN placed Doe on the waiver

program’s non-critical waiting list. Doe appealed this decision

to DHHS, and claimed that DDSN had failed to provide her with

services within a reasonably prompt time frame as required by

federal regulations. Pending that appeal, DDSN moved Doe to its

critical waiting list in February 2003. Doe was advised that

she met certain DDSN eligibility requirements in March 2003.

She was then moved to the top of the critical waiting list.

At a March 2003 hearing on the appeal, a DHHS hearing

officer dismissed the matter. He found that, by moving Doe to

the top of the critical waiting list and determining that she

was eligible for services, DDSN had resolved all of Doe’s claims

in her favor. The hearing officer also found that DDSN had not

provided Doe with services in a “reasonably prompt” period of

time. However, because DDSN was then promising to provide Doe

with services, the hearing officer found that he lacked the

power to provide any other relief and the appeal was dismissed.

Joint Appendix (“J.A.”) 887-89.

In April 2003, DDSN approved a “plan of care” that was

developed for Doe pursuant to 42 C.F.R. § 441.301(b)

(hereinafter the “2003 plan”). J.A. 616-44. The 2003 plan

6
included a regime of personal care, psychological evaluations,

and other services to be provided in-home at the residence of

Doe’s mother. It also recommended that Doe “receive residential

habilitation from a DDSN approved provider” within three months

at a “setting located within the Columbia area to be chosen by

her family.” J.A. 625.

In May 2003, in response to the declining mental health of

Doe’s mother, Doe asked to terminate the in-home services and,

per the 2003 plan, receive “residential habilitation services”

in either a CTH I or CTH II. J.A. 920, 923. In June 2003,

after failing to receive any residential habilitation services,

Doe initiated this action, wherein she accused Defendants of

violating the Medicaid Act. She sought injunctive relief from

DDSN, the payment of medical expenses, and attorney’s fees.

In a letter dated June 26, 2003, DDSN authorized CTH I or

SLP II services for Doe at a residential center (hereinafter the

“authorization letter”). J.A. 942-44. According to the

authorization letter, an assessment of Doe by DDSN revealed that

her needs for “out-of-home placement/residential habilitation

supervision, care and skills training” could be met at either of

these two placements. J.A. 943. However, Doe rejected the DDSN

chosen provider, the Babcock center, because she believed that

the facility could not safely provide her with appropriate

services. Through August 2003, Defendants and Doe discussed

7
some alternative placements, including the possibility of

upgrading the services at another CTH I setting or placement at

a CTH II facility closer to her family. J.A. 1689. However,

Defendants also maintained that a CTH I setting “represents the

best long-term option” for Doe. Id. In an August 16, 2003

letter, DDSN gave Doe permission to reside in a CTH II facility,

where she would receive “respite” or temporary services. J.A.

74. As of December 2010, Doe continues to reside in a CTH II

facility.

In February 2005, DDSN reevaluated Doe’s eligibility for

Medicaid services. Based upon this reevaluation, DDSN now

maintains that Doe is not mentally retarded and, therefore, is

ineligible for the waiver program. J.A. 1208-09. According to

Doe, the reevaluation was initiated in retaliation for her

filing of this lawsuit. J.A. 105-06. She also believes it

contradicts the Social Security Administration’s prior

determination that Doe is mentally retarded, and the similar

longstanding diagnosis of Doe’s physicians. J.A. 93-106. Doe

administratively appealed this reevaluation. J.A. 1207.

However, both a DHHS hearing officer and a state administrative

law court judge agreed with DDSN. See generally Pruitt v. South

Carolina Dep’t of Health and Human Serv., No. 06-ALJ-08-0605-AP,

2008 WL 2828634 (S.C. Admin. L. Ct. June 20, 2008). The matter

is now pending before the South Carolina Court of Appeals.

8
 In February 2008, on remand, with only her reasonable

promptness claim properly before the district court, Doe moved

to amend her complaint. J.A. 77. The amended complaint would

have added three causes of action based on the Supremacy Clause

of the Constitution and the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. J.A. 106-15. These new

causes of action would draw into the federal action Doe’s state

court challenges to Defendants’ reevaluation, as well as again

dispute Defendants’ right to decide whether Doe is entitled to

CTH I or CTH II services. The court denied her motion to amend.

On April 21, 2009, Defendants filed a motion for partial

summary judgment on the issue of damages. The court granted

that motion in a short text order on August 19, 2009.

On May 14, 2009, Plaintiffs also filed a motion for summary

judgment, and, that same day, Defendants filed a second motion

for summary judgment on all remaining issues in the case.

Following opposition and reply briefs on these motions, the

district court held a hearing on May 21, 2009.

On January 29, 2010, the district court dismissed Doe’s

reasonable promptness claim. J.A. 17-23. Specifically, the

court held that Defendants are not obligated under the Medicaid

Act to provide or pay for the specific residential habilitation

services from the 2003 plan with reasonable promptness. J.A.

22-23 (citing Bruggeman ex rel. Bruggeman v. Blagojevich, 324

9
F.3d 906, 910 (7th Cir. 2003)). The court dismissed her

reasonable promptness claim because Defendants had promptly and

continuously met their obligation to pay for some residential

habilitation services. It held that, even though the services

funded by Defendants were not the same ones called for in the

2003 plan and the authorization letter, the Medicaid Act did not

actually require Defendants to provide any specific services,

only to pay for some unspecified ones. J.A. 23. The court then

added, speaking to the issues Doe attempted to raise related to

her state administrative appeal, that her “challenge to DDSN’s

level of care and placement decisions must be made through the

administrative procedures available to her in state court.”

II.

We disagree with the district court. Defendants’ failure

to provide Doe with those residential habilitation services

described in her 2003 plan in a reasonably prompt manner

constituted a violation of the Medicaid Act. Thus, we grant

summary judgment in favor of Doe and find that, as the

prevailing party, she is entitled to attorney’s fees. We affirm

the denial of her motion to amend the pleadings.

A.

The sole issue to survive the prior appeal is whether the

requisite medical services were provided to Doe in a reasonably

10
timely manner. Doe I, 501 F.3d at 360. Thus, despite Doe’s

attempts to raise various issues related to the 2005 Medicaid

eligibility determination, here, we must decide only that

single, very narrow issue.

Under the Medicaid Act, “[a] State plan for medical

assistance must -- provide that all individuals wishing to make

application for medical assistance under the plans shall have

opportunity to do so, and such assistance shall be furnished

with reasonable promptness to all eligible individuals.” 42

U.S.C. § 1396a(a)(8). These provisions are “clear” and

therefore establish rights under the Medicaid Act that are

enforceable through § 1983. 2 Doe I, 501 F.3d at 356-57.

It is undisputed that Doe applied for services in 2002, and

qualified for CTH I residential habilitation services in June

2003. However, Defendants claim that she is not entitled to any

relief because (1) they offered her a CTH I placement in June

2
Defendants argue that Doe I misapplied 42 C.F.R.
§ 435.911, which appears to establish a timeline whereby a state
agency must make a determination as to eligibility, but not a
timeline for when an agency must actually furnish services.
(Appellees’ Br. at 39-40.) They would have us instead rely upon
§ 435.930, which states only that Medicaid services are to be
made available “without any delay caused by the agency’s
administrative procedures.” See, e.g., Doe 1-13 By and Through
Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 721-22 (11th Cir. 1998)
(upholding a district court’s conclusion that “reasonable
promptness” means a period not to exceed ninety days). Because
we find that Defendants have never provided Doe with the
appropriate services, we will not address these more subtle
issues of timeliness.

11
2003, which she then turned down; and (2) because, Defendants

have financed CTH II respite services since July 2003, they are

not required to find a suitable CTH I residential habilitation

placement for Doe. Alternatively, Defendants argue that, here,

Doe has only appealed the district court’s order on Defendants’

motion for summary judgment on the remaining issues, not its

grant of partial summary judgment as to damages. Thus, they

believe, even if we were to find in her favor, she cannot obtain

any meaningful relief.

i.

Contrary to what the district court held and Defendants now

argue, after Doe rejected the CTH I services offered in June

2003, Defendants were still obligated to present her with

alternative CTH I services within a reasonably prompt period of

time. Although this Court dismissed Doe’s freedom of choice

claim, finding that she had no right to choose between CTH I and

CTH II services, we did note that Doe retains a “choice of

providers, so long as the provider operates a CTH I facility,

the kind of setting DDSN has determined would constitute the

least restrictive environment for Doe.” Doe I, 501 F.3d at 360.

In fact, § 1396a(a)(23) of the Medicaid Act “is clearly drawn to

give Medicaid recipients the right to receive care from the

Medicaid provider of their choice, rather than the government’s

12
choice.” 3 Silver v. Baggiano, 804 F.2d 1211, 1217 (11th Cir.

1986).

The district court, in granting summary judgment for

Defendants relied upon the Seventh Circuit’s definition of

“medical assistance” in 42 U.S.C. § 1396a(a)(8). In Bruggeman,

the plaintiffs sought a court order requiring Illinois to build

and operate facilities for the provision of actual medical

services for Medicaid recipients in the northern part of the

state. 324 F.3d at 909. Narrowly construing the phrase

“medical assistance,” the Seventh Circuit held that it is a

reference to “financial assistance rather than to actual

services.” Id. at 910 (emphasis added). The Seventh Circuit

therefore held that Illinois was only required to pay for

appropriate medical services, and was not obligated to actually

construct hospitals or manage medical care. Id. at 910-11.

Unlike the district court, we cannot see how our adoption

of Bruggeman would change the outcome of this case. Even

3
42 U.S.C. § 1396a(a)(23) states, in relevant part, that “A
State plan for medical assistance must provide that (A) any
individual eligible for medical assistance (including drugs) may
obtain such assistance from any institution, agency, community
pharmacy, or person, qualified to perform the service or
services required . . . who undertakes to provide him such
services, and (B) an enrollment of an individual eligible for
medical assistance . . . shall not restrict the choice of the
qualified person from whom the individual may receive services
under section 1396d(a)(4)(C) of this title, except as provided
in subsection (g) of this section and in section 1396n of this
title . . . .” (emphasis added).

13
assuming we were to agree with the Seventh Circuit, Defendants

obligations as to Doe, the 2003 plan, and the authorization

letter would not change. As we outlined in Doe I, the Medicaid

program requires Defendants to “select[] the appropriate setting

for the provision of waiver services. Once a setting is

selected, recipients have a choice of qualified providers among

those who offer services in the setting DDSN has approved.” 501

F.3d at 359. Bruggeman itself also suggests that the

distinction Defendants try to draw between duties to provide

funding-for-care versus actual-direct-care is of no importance

here, since the Medicaid regulations ensure the “prompt

provision of funds to eligible individuals to enable them to

obtain the covered medical services that they need . . . .” 324

F.3d at 910-11 (emphasis added). It therefore cannot suffice

that Defendants have paid for another, albeit similar, type of

residential habilitation service that Defendants themselves do

not believe Doe needed or was even entitled to.

Here, per the 2003 plan and the authorization letter, DDSN

found that Doe’s placement at a CTH I facility would best meet

her medical need for residential habilitation services in the

least restrictive environment. See 42 C.F.R. § 441.301(b)(1)(i)

(requiring states providing services through the waiver program

to do so pursuant to a “written plan of care subject to approval

by the Medicaid agency”). Therefore, “Doe had a right to choose

14
among providers of CTH I services, not a right to choose to live

in any CTH II setting she wished.” Doe I, 501 F.3d at 359.

The provision of different CTH II respite services by

Defendants did not somehow relieve them of their legal

responsibility to subsidize Doe’s placement in a suitable CTH I

setting, nor did it negate her freedom of choice among CTH I

providers. Thus, the ongoing failure of Defendants to pay for

the CTH I residential habilitation services is the same as a

failure to provide any services.

ii.

Similarly, although the parties appear deeply concerned

about the subtle difference between residential habilitation and

respite services, we do not believe that parsing out these

distinctions will alter the outcome of this case. We continue

to believe that Doe I was correct in so far as it held that

respite services and residential habilitation services are, to

some extent, distinct:

Respite care, which Doe is currently receiving, “is
furnished on a short-term basis due to the regular
care giver’s absence or need for relief.” Benjamin H.
v. Ohl, No. 3:99-0338, 1999 WL 34783552, at *2
(S.D.W.Va. July 15, 1999). Residential habilitation,
which Doe has requested, “helps recipients with the
skills needed for daily living, such as eating and
performing personal hygiene, household chores, and
food preparation. It also focuses on the social and
adaptive skills which enable an individual to avoid
institutionalization.” Id. at *3.

15
Doe I, 501 F.3d at 354 n.3. The 2003 plan only required DDSN to

provide “residential habilitation services.” J.A. 625. State

regulations define residential habilitation services as “the

care, skills training and supervision provided to individuals in

a non-institutional setting.” J.A. 656. We therefore agree

with Defendants that this definition includes any of those

services provided in a SLP II, CTH I, CTH II or other “non-

institutional” settings.

Nevertheless, this debate is inconsequential because both

parties concede the more important point: that the CTH II

respite services currently being provided for Doe are not

equivalent to the SLP II or CTH I residential habilitation

services approved by the 2003 plan and the authorization letter.

(Appellant’s Br. at 34-35; Appellees’ Br. at 42-45.) Defendants

were obligated under the Medicaid Act and its regulations to

provide Doe with the needed services in the least restrictive

environment. Doe I, 501 F.3d at 359. As conveyed in the

authorization letter, after evaluating Doe and consulting with

her representatives in the development of the 2003 plan, DDSN

determined that Doe should receive residential habilitation

services in either a SLP II or CTH I setting. Both parties

concede that Doe has never actually received these services in

the designated setting. (Appellant’s Br. at 34-36; Appellees’

Br. at 43-45.) It is also undisputed that, after Doe rejected

16
the Babcock center in 2003, Defendants have never offered Doe

any other satisfactory CTH I placements. (Appellant’s Reply Br.

at 17; Appellees’ Br. at 45.) Instead, since 2003, Doe has only

received “temporary” or respite services at a more restrictive

CTH II facility. (Appellant’s Br. at 34-35; Appellees’ Br. at

43-45.)

Notwithstanding Defendants’ arguments to the contrary or

even Doe’s own insistence that a CTH II setting may be more

desirable, we reaffirm the holding of Doe I as to Defendants’

obligations and Doe’s rights under the Medicaid Act:

(1) Defendants were to make a determination as to the proper

level of care, here, a CTH I setting; (2) Doe was then within

her rights to refuse to accept the Babcock center, the first

suggested CTH I facility; and (3) Defendants were then obligated

to present her with “feasible alternatives” for the provision of

residential habilitation services at a suitable care facility of

her choice. 42 U.S.C. § 1396n(c)(2)(C); see also 42 C.F.R.

§ 441.302(d)(2) (waiver program participants are to be “[g]iven

the choice of either institutional or home and community-based

services.”). Despite these unambiguous legal mandates,

Defendants never presented Doe with any alternative SLP II or

CTH I placements.

Indeed, Defendants admit that they abdicated their

responsibility to furnish Doe with the necessary services in the

17
least restrictive environment, i.e., a SLP II or CTH I setting,

based upon the whims of Doe’s representatives. (Appellee’s Br.

at 49-50.) However, as Defendants successfully argued in Doe I,

it was ultimately Defendants’ responsibility to decide the

appropriate setting for Doe and to execute the 2003 plan within

that setting. 501 F.3d at 359. Neither of these matters fell

upon Doe or her representatives to decide or implement. Thus,

it is irrelevant that, after DDSN refused to upgrade services at

the only CTH I placement proposed by it or to recommend another

CTH I setting, Doe’s representative sought a more restrictive

CTH II level of care. The law places the burden on Defendants

to work with Doe to find or establish an acceptable SLP II or

CTH I setting, which, so far, they have utterly failed to do.

We therefore hold that, as a matter of law, Defendants have

violated the Medicaid Act through their ongoing refusal to

finance residential habilitation services at an acceptable CTH I

placement of her choice.

iii.

Even with the abandonment of her damages claim on appeal,

it is still within the equitable powers of the courts to order

Defendants to place Doe in an appropriate SLP II or CTH I

program of her choice. In actions brought under § 1983 in the

context of the Medicaid Act, the district courts are invested

with broad equitable powers to style any appropriate remedial

18
relief. See Alexander v. Hill, 707 F.2d 780, 783 (4th Cir.

1983) (permitting a district court to exercise its broad

equitable powers in fashioning a remedy to address the

continuing failure of a state to comply with Medicaid

regulations); Smith v. Miller, 665 F.2d 172, 175 (7th Cir. 1981)

(concluding that no provision of the Medicaid Act or the

Constitution restricts the authority of the courts to award

equitable relief).

Since 2005, DDSN has declared Doe ineligible for Medicaid

benefits, but continues to provide her with services pending her

administrative appeal. Accordingly, Defendants assert that any

equitable relief provided to Doe would be futile since she is no

longer entitled to benefits, and that, even if her benefits were

later reinstated, any judgment finding that her benefits had

been provided with unreasonable delay would be meaningless.

(Appellees’ Br. at 27-28.) However we note that, even now, Doe

continues to receive services. And, if Doe were to ultimately

win her state appeal, she would be entitled to future services.

We therefore find that it would be quite appropriate and

within the equitable powers of the district court to order

Defendants to finance a SLP II or CTH I placement of Doe’s

choice pending the resolution of the state appellate process.

Alternatively, the district court may issue a declaratory

19
judgment consistent with this opinion that may guide Defendants

should Doe ever become eligible for Medicaid services again. 4

iv.

Thus, having dispensed with all of Defendants’ arguments,

we hold: (1) that Defendants never provided Doe with residential

habilitation services in a SLP II or CTH I setting; (2) that the

CTH II respite services that have been provided to Doe since

July 2003 are not the equivalent of the SLP II or CTH I

residential habilitation services to which she is entitled; and

(3) that, given Defendants’ continuing violations of the

timeliness provisions of the Medicaid Act and its regulations,

they are ordered to provide Doe with services in a SLP II or CTH

I facility of her choice (at least pending the outcome of her

state appeal).

B.

“Ordinarily, we review an award of attorney’s fees for

abuse of discretion.” Smyth ex rel. Smyth v. Rivero, 282 F.3d

268, 274 (4th Cir. 2002). However, a determination of whether

4
Because Doe seeks only prospective relief to end the
ongoing violation of the Medicaid Act by state officials, there
is no danger that the issuance of an injunction or a declaration
would disturb State sovereignty. See Bragg v. West Virginia
Coal Ass’n, 248 F.3d 275, 292 (4th Cir. 2001) (“[T]he Eleventh
Amendment does not preclude private individuals from bringing
suit against State officials for prospective injunctive or
declaratory relief designed to remedy ongoing violations of
federal law.”).

20
Doe is the “prevailing party” for purposes of 42 U.S.C. § 1988

is a question of law to be considered de novo. Id. “A person

may not be a ‘prevailing party’ plaintiff under 42 U.S.C. § 1988

except by virtue of having obtained an enforceable judgment,

consent decree, or settlement giving some of the legal relief

sought in a § 1983 action.” S-1 and S-2 By and Through P-1 and

P-2 v. State Bd. of Educ. of N. Carolina, 21 F.3d 49, 51 (4th

Cir. 1994) (en banc) (citing Farrar v. Hobby, 506 U.S. 103

(1992)).

Because we now reverse the district court, and direct it to

grant summary judgment in her favor, there can be no question

that Doe is the “prevailing party” for purposes of § 1988. She

is therefore entitled to reasonable attorney’s fees as

determined by the district court. See Hanrahan v. Hampton, 446

U.S. 754, 758 (1980) (“Congress intended to permit the interim

award of counsel fees . . . when a party has prevailed on the

merits of at least some of his claims.”).

C.

Denial of leave to amend is subject to appellate review for

abuse of discretion. US Airline Pilots Ass’n v. Awappa, LLC,

615 F.3d 312, 320 (4th Cir. 2010). We agree with the district

court’s decision to deny Doe’s motion to amend the complaint.

Doe’s proposed amended complaint would have added three

causes of actions based upon the Due Process Clause, Equal

21
Protection Clause, and Supremacy Clause. These ostensibly new

causes of action sought to revive her earlier “freedom of

choice” claim, i.e., that she should be allowed to choose

between CTH I and CTH II services, and to collaterally attack

the now pending state administrative proceedings as to her

Medicaid eligibility.

Given our prior dismissal of her “freedom of choice” claim,

we find that the first proposed due process claim, in so far as

it alleges that state administrative hearings failed to consider

certain medical evidence as to the suitability of a CTH I

placement, would be futile. See GE Inv. Private Placement

Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001) (“Leave

to amend may properly be denied where amendment would be

futile.”). Moreover, this proposed amendment was brought before

the court in 2008, long after the allegedly faulty hearing

occurred in 2006. See Deasy v. Hill, 833 F.2d 38, 41 (4th Cir.

1987) (“[A] motion to amend should be made as soon as the

necessity for altering the pleading becomes apparent.” (quoting

6 Wright & Miller, Federal Practice and Procedure § 1488

(1971)).

The district court also did not abuse its discretion when

it rejected the amendments that would have added a second due

process claim challenging the timeliness of the hearing

officer’s decision making process, and a third claim arising

22
under the Equal Protection Clause and Supremacy Clause, wherein

Doe alleged that Defendants and the state proceedings somehow

misapplied federal law. “[L]ower federal courts possess no

power whatever to sit in direct review of state court

decisions.” Atlantic Coast Line R. Co. v. Engineers, 398 U.S.

281, 296 (1970). This rule is particularly important where “the

constitutional claims presented to a United States District

Court are inextricably intertwined with the state court’s denial

in a judicial proceeding” of a plaintiff’s request for relief.

Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482

n.16 (1983); see also Johnson v. DeGrandy, 512 U.S. 997, 1005-06

(1994) (noting that the Rooker-Feldman doctrine prevents an

unsuccessful state court party “from seeking what in substance

would be appellate review of the state judgment in a United

States district court, based on the losing party’s claim that

the state judgment itself violates the loser’s federal rights”).

In Feldman, the plaintiffs sought to challenge a D.C. Court

of Appeals decision denying them permission to sit for the local

bar exam. Id. at 468-469. The Supreme Court allowed the

plaintiffs to proceed with a constitutional challenge to the

local bar rules generally. Id. at 486-87. However, it held

that the plaintiffs could not ask the district court to directly

review the D.C. Court of Appeals’ judicially made determination

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that the plaintiffs were ineligible to sit for the bar exam.

Id.

Here, the district court could not have adjudicated Doe’s

constitutional claims without also reviewing the propriety of

the judicial rulings of the hearing officer, the South Carolina

administrative law judge, and any subsequent state appellate

courts. Unlike Feldman, these new claims did not challenge the

constitutionality of a particular procedure or law related to

Medicaid eligibility. See id. at 486 (holding that district

courts may review state law or those rules promulgated by a

state executive or judiciary acting in a non-judicial or

legislative manner). Doe merely alleges that the hearing

officer -- who clearly acted in a judicial capacity by issuing

an opinion in which he weighed the evidence and applied the

applicable law -- and the administrative law court judge made

their decisions in an arbitrary and capricious manner. Thus,

she seeks to collaterally attack these state court judicial

proceedings by asking the federal courts to again review the

evidence and to then overturn these state court judgments. This

we cannot and will not do. See id. (holding that district

courts “do not have jurisdiction . . . over challenges to state

court decisions in particular cases arising out of judicial

proceedings even if those challenges allege that the state

court’s action was unconstitutional”).

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 Doe was permitted under S.C. Code Ann. § 1-23-380(5)(a) to

raise her constitutional claims before the South Carolina

administrative law court. She also could have raised her

concerns about the purported retaliatory nature of Defendants’

reevaluation. If, following these state proceedings, her

Medicaid eligibility continues to be denied in a way she deems

unconstitutional, then appellate review by the state courts and,

perhaps, ultimately, the United States Supreme Court is her only

recourse. We are confident that the South Carolina courts will

thoughtfully and thoroughly consider these claims.

For these reasons, we believe that the court did not abuse

its discretion when it declined to allow Doe to amend her

complaint.

III.

We reverse the district court’s grant of summary judgment,

and hold that Defendants violated Doe’s rights under the

Medicaid Act by failing to provide her with any of the

residential habilitation services in a SLP II or CTH I setting,

as authorized by DDSN and the 2003 plan, with reasonable

promptness. Because Defendants have failed to demonstrate any

disputed issue of material fact, we grant Doe’s motion for

summary judgment. We also find that Doe is entitled to

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attorney’s fees. However, we affirm the district court’s denial

of Doe’s motion to amend the complaint.

Thus, the order of the district court granting summary

judgment for Defendants is reversed; Doe’s motion for summary

judgment is granted; the district court’s denial of the motion

to amend is affirmed; and we remand the case to the district

court to devise appropriate remedial relief, and to determine

reasonable attorney’s fees pursuant to § 1988.

REVERSED IN PART, AFFIRMED IN PART,
AND REMANDED WITH INSTRUCTIONS

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