Thurman v. Med. Transp. Mgmt., Inc.

• Decision Date: 15 December 2020
• Docket Number: No. 19-60596,19-60596
• Citation: 982 F.3d 953
• Parties: Leonard THURMAN, Plaintiff-Appellant, v. MEDICAL TRANSPORTATION MANAGEMENT, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

982 F.3d 953

Leonard THURMAN, Plaintiff-Appellant,

v.MEDICAL TRANSPORTATION MANAGEMENT, INCORPORATED, Defendant-Appellee.

No. 19-60596

United States Court of Appeals, Fifth Circuit.

FILED December 15, 2020

Lindsey Oswalt Watson, Esq., Adams & Reese, L.L.P., Ridgeland, MS, for Plaintiff-Appellant

Jason B. Purvis, Esq., Attorney, Purvis & Company, P.L.L.C., Gulfport, MS, Brian Christopher Whitman, Conveneince Counsel, P.L.L.C., Gulfport, MS, for Defendant-Appellee

Before Clement, Ho, and Duncan, Circuit Judges.

James C. Ho, Circuit Judge:

Leonard Thurman is a Medicaid recipient. He asked Medical Transportation Management, Inc. ("MTM") to drive him to a doctor's appointment. But according to the company, Thurman failed to provide MTM with the information needed to confirm his request. In response, Thurman sued under 42 U.S.C. § 1983, among other claims. He alleged that MTM's failure to pick him up violated his purported right to non-emergency medical transportation under various federal regulatory and statutory Medicaid provisions. The district court dismissed Thurman's claims, and rightly so.

Whether a § 1983 claim may be brought to enforce an administrative regulation is an open question in this circuit. But the overwhelming majority of circuits that have decided the issue have held that such claims may not be brought—consistent with the principle that federal rights are created by Congress, not agencies of the Executive Branch, as the Supreme Court has affirmed on various occasions. See , e.g. , Alexander v. Sandoval , 532 U.S. 275, 291, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ; Gonzaga Univ. v. Doe , 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). We agree and therefore join those circuits on this question. We also hold that none of the statutory provisions invoked by Thurman clearly and unambiguously create a right to non-emergency medical transportation, as established precedents require for a claim under § 1983. Accordingly, we affirm.

I.

MTM provides non-emergency medical transportation to Medicaid recipients. Thurman alleges that he requested a pickup for a doctor's appointment to treat complications stemming from a tooth extraction performed two weeks earlier. But MTM did not pick him up. So Thurman filed an internal grievance with MTM. In response, MTM explained that the trip was never confirmed because Thurman did "not provide all trip information" during the scheduling call, placed the MTM representative on hold, and did not return to the line.

Initially proceeding pro se, Thurman sued MTM.¹ He brought, among others, a claim under 42 U.S.C. § 1983. MTM moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). In response, Thurman conceded all claims other than his § 1983 claim. So the single issue for decision was whether MTM deprived Thurman of a federal right cognizable under § 1983.

Section 1983 only applies to "state actors." But MTM did not dispute Thurman's assertion that it is a "state entity" that is jointly funded by the state and federal governments. So the district court assumed that MTM was acting under color of state law. The district court nevertheless held that there is no federal right to non-emergency medical transportation enforceable in a § 1983 action, and therefore granted MTM's motion to dismiss.

Again proceeding pro se, Thurman appealed and attempted to file a brief with this court multiple times. We initially dismissed Thurman's appeal for want of prosecution. However, on further review, this court reopened the appeal and appointed pro bono counsel. We specifically ordered that the parties file supplemental briefs "addressing whether an administrative regulation may establish a federal right enforceable under 42 U.S.C. § 1983."

II.

We review a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo. Hosein v. Gonzales , 452 F.3d 401, 403 (5th Cir. 2006). When a court reviews a motion to dismiss for failure to state a claim under Rule 12(b)(6), it accepts "all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Jones v. Greninger , 188 F.3d 322, 324 (5th Cir. 1999). As the Supreme Court has held, however, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). And a complaint may be dismissed if it clearly lacks merit—for example, where there is "an absence of law to support a claim of the sort made." Associated Builders, Inc. v. Ala. Power Co. , 505 F.2d 97, 99 (5th Cir. 1974) (quotations omitted) (quoting De Loach v. Crowley's, Inc. , 128 F.2d 378, 380 (5th Cir. 1942) ).

III.

" Section 1983 liability results when a ‘person’ acting ‘under color of’ state law, deprives another of rights ‘secured by the Constitution’ or federal law." Doe v. United States , 831 F.3d 309, 314 (5th Cir. 2016) (quoting 42 U.S.C. § 1983 ). So simply stating a violation of federal law is not enough. See , e.g. , Cuvillier v. Taylor , 503 F.3d 397, 402 (5th Cir. 2007). Under the plain text of § 1983, a plaintiff may bring an action only for a violation of a "right" afforded to that person under federal law. See , e.g. , Gonzaga , 536 U.S. at 283, 122 S.Ct. 2268. Moreover, federal law "must provide ‘an unambiguously conferred right’ with an ‘unmistakable focus on the benefitted class.’ " Legacy Cmty. Health Servs., Inc. v. Smith , 881 F.3d 358, 371 (5th Cir. 2018) (emphasis omitted) (quoting Gonzaga , 536 U.S. at 283–84, 122 S.Ct. 2268 ).

A.

The first question Thurman raises in this appeal is whether the Medicaid transportation regulation, 42 C.F.R. § 431.53, creates an individual federal right that can be enforced through a § 1983 action. To answer that question, we must decide whether any agency regulation can ever independently create individual rights enforceable through § 1983.

We have not answered this question before. See Texas RioGrande Legal Aid, Inc. v. Range , 594 F. App'x 813, 815 n.4 (5th Cir. 2014) ("Although there is no dispute that federal statutes may create private rights that are enforceable under § 1983, there is an interesting and difficult question that has divided courts as to whether agency regulations may do the same.") (collecting cases); Gracia v. Brownsville Hous. , 105 F.3d 1053, 1057 (5th Cir. 1997) ("[I]t is not clear that regulations can be considered ‘laws’ for purposes of creating a right actionable under section 1983.") (citing Wright v. Roanoke Redev. & Hous. Auth. , 479 U.S. 418, 437–39, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (O'Connor, J., dissenting)).

Nor has the Supreme Court. But the Supreme Court has provided important guidance that, like other circuits, we find dispositive of this question.

In Sandoval , the Court held that regulations cannot create causes of action enforceable in federal court. 532 U.S. at 293, 121 S.Ct. 1511. "Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not." Id. at 291, 121 S.Ct. 1511. "Agencies may play the sorcerer's apprentice but not the sorcerer himself." Id.

The following year, the Court held that statutory violations may be enforced under § 1983—but only if it is clear that Congress actually intended to create an individually enforceable right. See Gonzaga , 536 U.S. at 283, 122 S.Ct. 2268. The Court explained that "whether a statutory violation may be enforced through § 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute." Id. (cleaned up). "But the inquiries overlap in one meaningful respect—in either case we must first determine whether Congress intended to create a federal right ." Id. For "it is rights , not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section." Id. Moreover, Gonzaga imposes a rigorous standard to ensure that entities are on notice that they could be held liable under § 1983 for violations of the asserted right. "[No]thing short of an unambiguously conferred right" is sufficient "to support a cause of action brought under § 1983." Id.

It follows from Sandoval and Gonzaga that agency regulations cannot independently confer federal rights enforceable under § 1983 for one simple reason: Those cases make clear that it is Congress, and not an agency of the Executive Branch, that creates federal rights. See , e.g. , Sandoval , 532 U.S. at 291, 121 S.Ct. 1511 ("Language in a regulation ... may not create a right that Congress has not."); Gonzaga , 536 U.S. at 283, 122 S.Ct. 2268 ("[No]thing short of an unambiguously conferred right [will] support a cause of action brought under § 1983.... [W]e must first determine whether Congress intended to create a federal right .").

The Third, Fourth, Sixth, Ninth, and Eleventh Circuits have all reached the same conclusion. See S. Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot. , 274 F.3d 771, 788 (3rd Cir. 2001) ; Smith v. Kirk , 821 F.2d 980, 984 (4th Cir. 1987) ; Caswell v. City of Detroit Hous. Comm'n , 418 F.3d 615, 618, 620 (6th Cir. 2005) ; Save Our Valley v. Sound Transit , 335 F.3d 932, 939 (9th Cir. 2003) ; Harris v. James , 127 F.3d 993, 1008 (11th Cir. 1997). Those circuits agree that "the Supreme Court's § 1983 jurisprudence is founded on the principle that Congress creates rights by statute." Save Our Valley , 335 F.3d at 936 (citing S. Camden Citizens in Action , 274 F.3d at 790 ; Harris , 127 F.3d at 1008–09 ). For it is "Congress, rather than the executive, [that] is the lawmaker in our democracy." Save Our Valley , 335 F.3d at 939.²

Thurman asks us to ignore those circuit precedents, and instead follow an earlier decision of the Sixth Circuit, which held that agency regulations can...