Thurman v. Medical Transportation Mgmt

United States Court of Appeals
for the Fifth Circuit

No. 19-60596

Leonard Thurman,

Plaintiff—Appellant,

versus

Medical Transportation Management, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CV-282

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.
United States Court of Appeals
Fifth Circuit
FILED
December 15, 2020

Lyle W. Cayce
Clerk
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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 (2001); Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (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

1
After filing suit, Thurman was represented by two attorneys who filed a brief in
response to MTM’s motion to dismiss. Both attorneys moved to withdraw before the court
decided the motion. The court allowed the withdrawals.
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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
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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
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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. 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).
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
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Redev. & Hous. Auth., 479 U.S. 418, 437–39 (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. “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. “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. 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
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Executive Branch, that creates federal rights. See, e.g., Sandoval, 532 U.S. at
291 (“Language in a regulation . . . may not create a right that Congress has
not.”); Gonzaga, 536 U.S. at 283 (“[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

2
The D.C. Circuit has reached the opposite conclusion. But it did so under narrow
circumstances not presented here. In that case, Congress “explicitly directed” the
Department of Housing and Urban Development to issue certain regulations to ensure
compliance with federal statutes. Samuels v. District of Columbia, 770 F.2d 184, 199 (D.C.
Cir. 1985). As the court concluded, “[a]t least where Congress directs regulatory action, we
believe that the substantive federal regulations issued under Congress’ mandate constitute
‘laws’ within the meaning of section 1983.” Id. (emphasis added). Far from a broad
pronouncement that regulations can independently confer federal rights, then, Samuels at
most stands for the proposition that regulations can confer rights when Congress explicitly
directs regulatory action. Id. at 201. And in any event, Samuels was issued before the
Supreme Court’s decisions in Sandoval and Gonzaga.
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regulations can create individual federal rights. In Boatman v. Hammons, 164
F.3d 286 (6th Cir. 1998), the court held that, “because federal regulations
have the force of law, they must be characterized as ‘law’ under § 1983.” Id.
at 289. But there is a missing step in that logic. Even if a regulation has the
force of law, it is a separate question whether that law is an enforceable right
under § 1983. And we know from Gonzaga that the answer is no—not unless
Congress has created such an enforceable right by statute. 536 U.S. at 285.
So Boatman does not answer the question at issue here. What’s more, the
Sixth Circuit has expressly disavowed the authority on which Boatman relied,
Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994). See Johnson v. City
of Detroit, 446 F.3d 614, 629 (6th Cir. 2009) (stating that after Gonzaga and
Sandoval, “the rule expressed in Loschiavo, that a federal regulation alone
may create a right enforceable through § 1983, is no longer viable”); see also
Caswell, 418 F.3d at 618, 620.
Accordingly, we join the Third, Fourth, Sixth, Ninth, and Eleventh
Circuits and hold that Thurman cannot sue MTM under § 1983 based solely
on the non-emergency medical transportation regulation.
B.
Alternatively, Thurman asks us to construe three statutory provisions
in conjunction with the Medicaid non-emergency medical transportation
regulation to establish a federal right enforceable under § 1983. Specifically,
he relies on 42 U.S.C. § 1396a(a)(8), (19), and (70), which read as follows:
A state plan for medical assistance must—
(8) provide that all individuals wishing to make
application for medical assistance under the plan shall have
opportunity to do so, and that such assistance shall be
furnished with reasonable promptness to all eligible
individuals; . . .

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(19) provide such safeguards as may be necessary to
assure that eligibility for care and services under the plan will
be determined, and such care and services will be provided, in
a manner consistent with simplicity of administration and the
best interests of the recipients; . . .
(70) at the option of the State and notwithstanding
paragraphs (1), (10)(B), and (23), provide for the establishment
of a non-emergency medical transportation brokerage program
in order to more cost-effectively provide transportation for
individuals eligible for medical assistance under the State plan
who need access to medical care or services and have no other
means of transportation . . . .
None of these provisions even come close to establishing the
“unambiguously conferred right” necessary “to support a cause of action
brought under § 1983.” Gonzaga, 536 U.S. at 283. See also Blessing v.
Freestone, 520 U.S. 329, 340–41 (1997) (“[T]he plaintiff must demonstrate
that the right assertedly protected by the statute is not so ‘vague and
amorphous’ that its enforcement would strain judicial competence,” and
that “the statute must unambiguously impose a binding obligation on the
States.”) (citation omitted).
Among the statutory provisions cited by Thurman, only paragraph 70
even refers to transportation. But far from establishing an individual right to
non-emergency medical transportation, it expressly gives states the option to
establish a transportation brokerage program.
Paragraphs 8 and 19 do not mention transportation at all. And there
is no basis for reading a transportation right into those paragraphs. At most,
those provisions establish only a right to receive certain health care services
from the Medicaid program. See, e.g., Romano v. Greenstein, 721 F.3d 373, 379
(5th Cir. 2013) (holding that paragraph 8 creates a right to “medical
assistance” with “reasonable promptness”). Moreover, the Eleventh
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Circuit has held that paragraph 19 “imposes only a generalized duty on the
States—in other words, the provision is insufficiently specific to confer any
particular right upon the plaintiffs.” Harris, 127 F.3d at 1010.
Accordingly, we agree with the Eleventh Circuit that paragraphs 8, 19,
and 70, whether on their own or in combination with 42 C.F.R. § 431.53,
cannot “support a conclusion that Congress has unambiguously conferred
upon Medicaid recipients a federal right to transportation enforceable under
§ 1983.” Id. at 1012.
* * *
For the foregoing reasons, we affirm.
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