Jimmy Chip E v. Beverly Buscemi , 647 F. App'x 219 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1039
JIMMY CHIP E,
Plaintiff – Appellant,
and
MICHELLE M; PETER B; KAREN W,
Plaintiffs,
v.
BEVERLY BUSCEMI; KELLY FLOYD; SOUTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES, The; SOUTH CAROLINA DEPARTMENT
OF DISABILITIES AND SPECIAL NEEDS, The; ANTHONY KECK;
RICHARD HUNTRESS; NIKKI RANDHAWA HALEY; MARSHALL C.
SANFORD,
Defendants – Appellees,
and
EMMA FORKNER,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge; Timothy M. Cain, District Judge. (6:10-cv-00767-TMC)
Submitted: April 21, 2016 Decided: April 29, 2016
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia Logan Harrison, Columbia, South Carolina; Kenneth C.
Anthony, Jr., ANTHONY LAW FIRM, Spartanburg, South Carolina, for
Appellant. William H. Davidson, II, Kenneth P. Woodington,
DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jimmy Chip E (“Chip”), a participant in South Carolina’s
Medicaid waiver program, appeals from the district court’s order
dismissing his claims as moot. We have reviewed the parties’
briefs and the joint appendix, and we find no reversible error.
Accordingly, we affirm substantially for the reasons stated by
the district court. E v. Buscemi, No. 6:10-cv-00767-TMC (D.S.C.
Mar. 7, 2013).
We address two issues separately. First, Chip contends
that he has a right to receive services ordered by his treating
physician and that Defendants’ failure to promptly provide such
services violates the Medicaid Act, 42 U.S.C. § 1396a (2012),
and 42 U.S.C. § 1983 (2012). As a result, Chip asserts that
this portion of his complaint was improperly dismissed. Chip’s
claim is without merit for several reasons.
First, Chip rests his claim on a one-page 2010 affidavit
from his treating physician. This does not purport to be an
“order,” nor does it state that, in the absence of the specific
care recommended, Chip would face risk of institutionalization.
Second, while a treating physician’s opinion is entitled to
deference, agencies are not bound by a treating physician’s
statement. See 42 U.S.C. § 1396n(i)(1)(G)(ii)(I)(aa) (2012)
(providing that the treating physician should be consulted in
determining a care plan); see also Moore ex rel. Moore v. Reese,
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637 F.3d 1220, 1255 (11th Cir. 2011) (holding that a private
physician’s word is “not dispositive”). Finally, there is no
evidence in the record that Chip or his physician formally
requested any additional services. Had he done so, any denial
or unreasonable delay would be subject to review through the
state administrative process, and potentially beyond. See
Doe v. Kidd, 501 F.3d 348, 351-52 (4th Cir. 2007) (describing
the process for service and assistance requests in South
Carolina).
Next, Chip raised a claim that his due process rights were
violated when he did not receive the proper notification and
hearing prior to the denial, reduction, or termination of his
services. However, proof of denial of due process in an
administrative proceeding requires a showing of substantial
prejudice. Jourdan v. Equitable Equip. Co., 889 F.2d 637, 640
(5th Cir. 1989). Here, the administrative proceeding was
resolved in Chip’s favor, and his services were not reduced.
Had there been a reduction, Chip could have raised his due
process claims in his administrative appeal and received proper
review. Because Chip has alleged no injury personal to him, his
claim is without merit.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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