Ronald Ellison v. Georgia Department of Community Health

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14344

Non-Argument Calendar

____________________

RONALD ELLISON,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF COMMUNITY HEALTH,

COMMISSIONER OF THE GEORGIA DEPARTMENT OF

COMMUNITY HEALTH,

GEORGIA DEPARTMENT OF HUMAN SERVICES,

COMMISSIONER OF GEORGIA DEPARTMENT OF

HUMAN SERVICES,

SOWEGA COUNCIL ON AGING INC, et al.,

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2 Opinion of the Court 20-14344

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 1:18-cv-00073-WLS

____________________

Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.

PER CURIAM:

Ronald Ellison appeals the district court’s dismissal of his

section 1983 due process claims against two state commissioners

and a non-profit and its employees. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

Ellison is in his mid-sixties and suffers from osteoarthritis

and hypertension. Because of these conditions, Ellison qualified for

home-delivered health care and meals under Medicaid. The bene-

fits were administered, first, by the Georgia Department of Human

Services, and, later, by the Georgia Department of Community

Health. The state agencies contracted with private non-profits to

provide the benefits. In the area where Ellison lived, the South-

western Georgia Council on Aging was the designated non-profit.

The state agencies required the non-profits to provide the Medicaid

services as outlined in two manuals.

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In April 2016, a case worker for the non-profit attempted to

recertify Ellison so he could continue receiving benefits. The case

worker entered Ellison’s home without knocking or announcing

herself, and, when Ellison “protested her illegal entry,” she became

“combative and argumentative.” Ellison then cautioned her that

“it could be extremely dangerous for him, and for her, for her to

enter his home without announcing herself and without knocking

first.” After completing the recertification, Ellison alleged, the case

worker falsely told her supervisor that he had threatened her.

Two days later, the supervisor and two others from the non-

profit returned to Ellison’s home for an “unscheduled case confer-

ence.” Because they were unexpected, Ellison refused to allow

them in. That same day, the supervisor discontinued, and then,

three days later, terminated, Ellison’s benefits without providing

him notice.

As a result of his termination, Ellison sued the two state

agencies, their commissioners, the non-profit, and its employees,

under 42 U.S.C. section 1983 for violating his constitutional rights.

First, he alleged that the defendants, in their official and individual

capacities, violated his due process rights by terminating his Medi-

caid benefits without notice or a pre-deprivation hearing. And sec-

ond, Ellison alleged that the defendants, in their official and indi-

vidual capacities, were deliberately indifferent to the violation of

his rights by failing to properly train and supervise their subordi-

nates.

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4 Opinion of the Court 20-14344

Soon after filing his section 1983 complaint, Ellison moved

for leave to amend and then did so again a month later. The district

court granted his first request and denied his second as untimely.

Because the state agencies and commissioners had already moved

to dismiss the original complaint, the district court gave them the

option of filing a new motion to dismiss or relying on their already-

filed motion.

The state agencies and commissioners relied on their al-

ready-filed motion, in which they asserted sovereign immunity as

to Ellison’s official capacity claims and qualified immunity as to his

individual capacity claims. The non-profit and its employees also

moved to dismiss, arguing that they were not state actors under

section 1983.

The district court granted both motions and dismissed the

amended complaint. As to the state agencies and commissioners,

the district court concluded that Ellison’s official capacity claims

were barred by sovereign immunity, and, as to the individual ca-

pacity claims, the state commissioners were entitled to qualified

immunity. As to the non-profit and its employees, the district court

concluded that Ellison had failed to allege that they were acting

under color of law.

II. STANDARD OF REVIEW

We review de novo a district court’s decision to grant or

deny the defense of qualified immunity on a motion to dismiss.

Davis v. Carter, 555 F.3d 979 (11th Cir. 2009). And we review

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20-14344 Opinion of the Court 5

de novo the district court’s dismissal of a complaint for failure to

state a claim. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288

(11th Cir. 2010). Pro se pleadings are liberally construed, but issues

not briefed on appeal are considered abandoned. Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

III. DISCUSSION

Ellison appeals the dismissal of his individual capacity claims

against the state commissioners, the non-profit, and its employees.

But he does not appeal the dismissal of his official capacity claims

or his claims against the state agencies, so they are not at issue in

this appeal. See id. (holding that issues not briefed on appeal are

considered abandoned.).

As to the individual capacity claims against the state com-

missioners, the non-profit, and its employees, Ellison makes three

arguments. First, he asserts that the district court erred in granting

the state commissioners’ motion to dismiss because the motion

was not directed at the amended complaint. Second, Ellison con-

tends that the state commissioners were not entitled to qualified

immunity because his “substantive due process right not to have

his Medicaid benefits discontinued without notice or opportunity

to be heard was clearly established.” And third, he argues that the

district court erred by concluding that the non-profit and its em-

ployees weren’t acting under color of state law.

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The State Commissioners’ Motion to Dismiss

Ellison argues that the district court should not have consid-

ered the state commissioners’ motion to dismiss because it was di-

rected at the wrong version of his complaint. But Ellison never

made this argument to the district court, so we do not consider it

for the first time on appeal. See Access Now, Inc. v. Sw. Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeat-

edly held that an issue not raised in the district court and raised for

the first time in an appeal will not be considered by this [C]ourt.”)

(cleaned up).

And even if we did consider it, “district courts have ‘unques-

tionable’ authority to control their own dockets,” and they have

“broad discretion in deciding how to best manage the cases before

them.” Smith v. Psych. Solutions, Inc., 750 F.3d 1253, 1262 (11th

Cir. 2014). Here, the district court gave the state commissioners

the option of either submitting an amended motion to dismiss

against Ellison’s amended complaint or relying on their initial mo-

tion to dismiss. We don’t see how this time-and-resource-saving

case management decision fell outside the district court’s broad dis-

cretion to manage its docket.

Qualified Immunity

Next, Ellison argues that the district court erred in conclud-

ing that the state commissioners were entitled to qualified immun-

ity.

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“The defense of qualified immunity completely protects

government officials performing discretionary functions from suit

in their individual capacities unless their conduct violates clearly

established statutory or constitutional rights of which a reasonable

person would have known.” Caldwell v. Warden, FCI Talladega,

748 F.3d 1090, 1099 (11th Cir. 2014) (citations and quotations omit-

ted). To overcome the qualified immunity defense, Ellison had to

allege that the state commissioners (1) violated a constitutional

right, and (2) that the right was clearly established at the time of

the alleged violation. Id. Additionally, “[s]upervisory officials are

not liable under [section] 1983 for the unconstitutional acts of their

subordinates unless the supervisor personally participates in the al-

leged constitutional violation or there is a causal connection be-

tween actions of the supervising official and the alleged constitu-

tional deprivation.” Doe v. Sch. Bd. of Broward Cnty., 604 F.3d

1248, 1266 (11th Cir. 2010) (internal quotations omitted).

Here, Ellison has not alleged that the state commissioners

personally participated in violating his constitutional rights. Ellison

did not allege that the state commissioners personally played a role

in terminating his Medicaid benefits. In his amended complaint,

Ellison alleged it was the private actors—the case worker and her

supervisor—and not the state commissioners who terminated his

benefits without a hearing. Indeed, Ellison alleged that the state

commissioners only learned of the termination of his benefits

through this lawsuit. They could not have personally participated

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8 Opinion of the Court 20-14344

in a constitutional violation that they only learned about after the

lawsuit was filed.

Without personal participation, Ellison must allege a “causal

connection” between the actions of the supervisors and the alleged

constitutional violation to hold the supervisors liable under section

1983. See Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308

(11th Cir. 2006) (explaining that “supervisors can be held personally

liable [under section 1983] when . . . there is a causal connection

between the actions of the supervisor and the alleged constitutional

violation”). A causal connection can be established “where a his-

tory of widespread abuse puts the supervisor on notice,” id., or

where an improper custom or policy resulted in deliberate indiffer-

ence to constitutional rights, Hartley v. Parnell, 193 F.3d 1263,

1269 (11th Cir. 1999). To be sufficient to put a supervisor on notice,

the constitutional deprivations must “not only be widespread, they

also must be obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Id. (internal citations omitted).

But Ellison has not alleged any other incidents of improper

benefits terminations, much less the “flagrant” and “widespread”

allegations needed to provide notice. Nor has he alleged that there

was a “custom or policy” of ignoring improper benefits termina-

tions. Without these crucial allegations, the state commissioners

cannot be held liable as supervisors under section 1983.

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State Actor

Finally, Ellison argues that the district court erred in con-

cluding that the non-profit and its employees were not acting un-

der color of state law, and, thus, not subject to section 1983 liability.

“Only in rare circumstances can a private party be viewed as

a ‘state actor’ for section 1983 purposes.” Harvey v. Harvey, 949

F.2d 1127, 1130 (11th Cir. 1992). These rare circumstances are: (1)

where “the State has coerced or at least significantly encouraged

the action alleged to violate the Constitution”; (2) where “the State

had so far insinuated itself into a position of interdependence with

the [private parties] that it was a joint participant in the enterprise”;

and (3) where “the private parties performed a public function that

was traditionally the exclusive prerogative of the State.” Id. Ellison

did not plausibly allege any of these three rare circumstances.

First, Ellison has not alleged that the state compelled the

non-profit and its employees to terminate his benefits. The Su-

preme Court has explained that “a State can normally be held re-

sponsible for a private decision only when it has exercised coercive

power or has provided such significant encouragement, either

overt or covert, that the choice must be in law deemed to be that

of the state.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). “Mere

approval of or acquiescence in the initiatives of a private party,” the

Supreme Court continued, “is not sufficient to justify holding the

State responsible[.]” Id. Here, Ellison has not alleged that any state

actor was involved in the non-profit and its employees’ decision to

terminate his benefits. His allegation that the state commissioners

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10 Opinion of the Court 20-14344

failed to intervene in his case isn’t enough because mere acquies-

cence can’t show state coercion.

Second, Ellison argues that the state acted as a joint partici-

pant with the non-profit and its employees because it contractually-

bound them to make decisions consistent with the state-issued

manuals. Ellison is right that, if a state contracts with a private

party and the contract requires the private party to take particular

actions, then by “acting in accordance with the governmental di-

rective[,] the private actor is merely a surrogate for the state, and

the tie between them is sufficiently strong” for section 1983 liabil-

ity. Focus on the Family v. Pinellas Suncoast Transit Auth., 344

F.3d 1263, 1278–79 (11th Cir. 2003).

But Ellison’s case is not like Focus on the Family. There, the

state contracted with a private entity to sell advertising space on

public transportation. Id. at 1268. The contract established clear

rules for approving ads and the state retained final decisionmaking

authority. Id. at 1278. Although the interdependence must “in-

volve the specific conduct of which the plaintiff complains,” we

said that the clear guidelines and direct supervisory control were

enough to survive summary judgment. Id.

Unlike the plaintiff in Focus on the Family, Ellison has not

alleged that the state agencies and commissioners had final deci-

sionmaking authority over the decision to terminate benefits. And

he has not alleged that the manuals had clear rules and guidelines

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20-14344 Opinion of the Court 11

for making the termination decision.1 For example, Ellison did not

allege that the manuals directed the non-profits to terminate bene-

fits without notice or an opportunity to be heard. Without any

allegations about what the manuals required the non-profits to do,

there is no plausible inference that they contractually-bound the

non-profit to violate Ellison’s constitutional rights.

Third, the provision of social services is not a traditional and

exclusive state function. The Supreme Court has stressed that

“very few” functions fall into this category. Manhattan Cmty. Ac-

cess Corp. v. Halleck, 139 S. Ct. 1921, 1929 (2019). In Manhattan

Community, the Supreme Court emphasized that the “traditional

and exclusive” function cannot merely be one that the government

has “exercised . . . in the past, or still does.” Id. at 1928. And it is

not enough that the function serves the public good. Id. at 1929.

Rather, it must be “traditionally and exclusively” performed by the

state. Id. The Court then listed as examples running elections and

operating a “company town.” Id. But operating nursing homes,

providing special education, representing indigent criminal

1 Because we review the district court’s dismissal of Ellison’s amended com-

plaint under Rule 12(b)(6), we do not consider any allegations outside of the

amended complaint. Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340

n.3 (11th Cir. 2005). That includes Ellison’s proffers about what the state agen-

cies and their commissioners or the non-profit and its employees said or did in

Ellison’s administrative and state-court proceedings because they are not al-

leged in the complaint.

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12 Opinion of the Court 20-14344

defendants, or even supplying electricity were not traditional and

exclusive state functions. Id.

Neither is providing elder care services—free meals, trans-

portation and cleaning. These are things that have traditionally

been done by religious groups, non-profits, and even family mem-

bers. We don’t see a meaningful distinction between providing el-

der care services through a nursing home, which the Supreme

Court has explained is not a traditional state function, see Blum,

457 U.S. at 1009, and providing elder care services through a non-

profit, especially when the state funds both activities, id. at 994–95.

And Ellison has not argued that there is a meaningful distinction.

Like state-funded nursing homes that care for the elderly, state-

funded home-based services for the elderly are not among the

“very few” “powers traditionally exclusively reserved to the State.”

See Manhattan Cmty. Access Corp., 139 S. Ct. at 1928–29.

IV. CONCLUSION

The district court properly dismissed Ellison’s amended

complaint because he failed to allege that the state commissioners

violated his constitutional rights. And he failed to allege that the

non-profit and its employees were acting under color of state law

and subject to section 1983.

AFFIRMED.