Kirkland v. Drake et al
Filing
60
MEMORANDUM AND ORDER: ELC Defendant's 51 Motion to Dismiss for Failure to State a Claim is denied. 55 Motion to Dismiss defendants Deb Pope and Katie Pope is granted. Defendants dismissed without prejudice. Signed by District Judge Julie A. Robinson on 5/23/2012. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WAYLAND DEE KIRKLAND,
Plaintiff,
v.
DIANE ZADRA DRAKE,
JESSICA SLOCUM, KATIE POPE,
DEB POPE, DONNA JOHNSON,
DREW WHITMORE,
ROBIN BURGESS,
JENNIFER STANLEY,
ZACH CYPERS, and
KEVIN KASTLER,
Defendants.
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Case No. 11-2347-JAR
MEMORANDUM AND ORDER
Plaintiff Wayland Dee Kirkland, proceeding pro se and in forma pauperis, brings this
action against Defendants alleging a conspiracy to violate his civil rights under 42 U.S.C. § 1983
by depriving him of funds received as part of a grant from Mental Health America of the
Heartland (“MHAH”).1 Defendant Diane Drake is the Director of Elizabeth Layton Center
(“ELC”) and Jessica Slocum, Donna Johnson, Drew Whitmore, Robin Burgess, Jennifer Stanley,
Zach Cypers and Kevin Kastler are present and former employees of ELC; Deb Pope and Katie
Pope are present and former employees of MHAH, respectively. This matter is before the Court
on Defendants Drake, Stanley, Burgess, Slocum, Kastler, Johnson and Cyphers’ (collectively
“ELC Defendants”) Motion to Dismiss (Doc. 51) for failure to state a claim under Fed. R. Civ. P.
1
This case has been consolidated for discovery and pretrial with the related case, Kirkland v. Jones, et al.,
No. 11-2504-EFM.
12(b)(6); and Defendants Deb Pope and Katie Pope’s Motion to Dismiss for failure to obtain
service of process (Doc. 55). For the reasons explained in detail below, the Court denies ELC
Defendants’ motion and grants the Pope Defendants’ motion, without prejudice.
I.
Procedural and Factual Background
The following facts are taken from Plaintiff’s Complaint. For the purposes of this
motion, the Court assumes the truth of these facts. Plaintiff received a HUD grant for housing
from MHAH on April 28, 2010. Included in the grant were “start-up funds” to purchase
household necessities with assistance from a case manager at ELC, “the local mental health
agency.” Plaintiff’s caseworker at ELC, Jessica Slocum, used the start-up funds to purchase a
washer, dryer and refrigerator. Plaintiff alleges the appliances were defective and when he
complained to Slocum, she told him he could use the start-up funds to repair or replace the
appliances. Plaintiff told Slocum that was unacceptable and that ELC should have to bear the
cost. When he continued to complain, Slocum would not allow Plaintiff to spend any of the
start-up funds or tell him how much money he had left from the original funds.
During an in-home visit by MHAH co-coordinators Deb Pope and Katie Pope in June
2010, Plaintiff was told by Katie Pope that he must save his remaining start-up funds for
emergencies. Plaintiff responded that this was ridiculous and that he expected to spend the funds
as soon as possible because the issue was stressing him out. Pope responded that all of MHAH’s
clients have money remaining in their start-up funds.
Plaintiff subsequently noticed a change in attitude and service by Slocum, who did not
show up or call for a July 2010 lung cancer appointment that she had set up for Plaintiff. In midJuly 2010, Plaintiff placed a phone call to the ELC’s Quality Assurance Coordinator, Donna
2
Johnson, to complain about his grant, but Johnson was “useless.”
On about July 26, 2010, Plaintiff went to the ELC to complain about the start-up funds
and Colt Coffin, an ELC staffer who Plaintiff believed was engaged in an inappropriate
relationship with Plaintiff’s girlfriend, Cheryl Blake, who is also a client of ELC. Instead of
addressing his concerns, Plaintiff alleges he was confronted by ELC psychologist Drew
Whitmore and ELC social worker Robin Burgess; instead of addressing his concerns, Whitmore
and Burgess conspired to commit Plaintiff to the Osawatomie State Hospital.
Upon his discharge from the State Hospital on August 2, 2010, Plaintiff phoned ELC
Executive Director Diane Drake to ask her to investigate his start-up funds and Defendant Coffin
and to request a new case manager. Drake was rude but said she would “look into it.” Plaintiff
received a letter dated August 5, 2010, from ELC Assistant Director Jennifer Stanley, informing
him his new case manager was Candi Dials. Dials was nice to Plaintiff and helped him spend
some of the start-up funds at Walmart. In mid-September 2010, Dials left a note on Plaintiff’s
door stating that she wanted him to use the funds to repair the washer and dryer. Dials also said
that she “got her ass jumped” for allowing Plaintiff to spend some of his funds.
In November 2010, Plaintiff was assigned another case manager, Zach Cyphers. When
Plaintiff asked Cyphers to help him spend his start-up funds, Cyphers told Plaintiff that Stanley
said that Plaintiff could only spend “so much per year” of his funds. That same month, Plaintiff
received a letter from Deb Pope at MHAH stating that start-up funds must be used within fortyfive (45) days of receipt of the grant.
Plaintiff received a letter from Johnson dated December 1, 2010, which did not address
his concerns regarding the start-up funds. In his response to Johnson dated December 8, 2010,
3
Plaintiff asked for a response in writing or voice recording. Plaintiff states that he had not
received a response to his November complaint from MHAH, ECL or the Disability Rights
Center of Kansas, but that HUD had responded.
Plaintiff states that the start-up funds issue brought him and Cyphers into dispute many
times. Cyphers told Plaintiff he could not help him with his complaints about ELC because he
would get fired. Cyphers “constantly” missed appointments without calling Plaintiff, including
his lung cancer appointments.
Plaintiff received a letter dated May 12, 2011, from Disability Rights Center of Kansas,
which included some documents and receipts from MHAH and ELC. Plaintiff contends that
missing from the documents was his November 2010 complaint to MHAH and ELC, as well as
the receipts from Walmart for purchases he made with Dials out of his start-up funds.
On June 6, 2011, Plaintiff spoke on the telephone with Stanley. He told her that he had
gone to the emergency room the previous month and had an appointment that day that he had to
cancel because Cyphers had not been in contact with him for over a month. Stanley said she told
Cyphers to stay away from Plaintiff because Plaintiff was upset about his start-up funds, then
informed Plaintiff that he had been assigned a new case worker, Kevin Kastler. Stanley assured
Plaintiff that she would call Kastler that day and that Plaintiff would receive a call from Kastler
that day. When Kastler did not call, Plaintiff went to his office on June 13, 2011, and Kastler set
up an appointment to see Plaintiff the next day. Plaintiff told Kastler that he was going to
borrow money for a voice recorder to tape their appointment. Kastler told Plaintiff he did not
care because he had “nothing to hide.” Plaintiff borrowed $50 from his nephew and bought the
recorder. When he began taping their meeting, however, Kastler became angry and ordered
4
Plaintiff to shut off the recorder.
II.
Discussion
Plaintiff alleges that Defendants violated his rights under the First, Fourth, Fifth and
Fourteenth Amendments of the United States Constitution. Plaintiff contends that Defendants at
ELC and MHAH conspired to defraud grant recipients with severe mental illnesses out of their
start-up funds intended to furnish the recipients’ homes. Plaintiff contends that all Defendants
acted under the color of state law and are sued in both their official and individual capacities.
Defendants Deb and Katie Pope seek dismissal of the claims against them due to Plaintiff’s
failure to obtain service of process within the time allowed by the Federal Rules of Civil
Procedure. ELC Defendants move to dismiss Plaintiff’s claim against them for failure to state a
claim upon which relief may be granted because they are not “persons acting under color of state
law” as required by § 1983. The Court discusses each in turn.
A.
Rule 4
Fed. R. Civ. P. 4(m) states,
If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
On December 19, 2011, Plaintiff was granted additional time to obtain service on
Defendants Deb and Katie Pope within 45 days of the date of the Order, or February 2, 2012, and
was further ordered to provide the Clerk’s Office with the current location and address for
Defendants or obtain summons from the Clerk’s Office with the updated addresses and return for
5
service within twenty (20) days of the date of the Order.2 Deb Pope was served March 8, 2012,
at MHAH, her place of employment; Katie Pope, who is no longer employed at MHAH, has not
been served. Plaintiff has not responded to Defendants’ motion to dismiss or otherwise
established good cause to explain why he failed to obtain service upon Defendants by February
2, 2012. Accordingly, this action is dismissed, without prejudice, with respect to the abovenamed Defendants.
B.
Rule 12(b)(6)
Because Plaintiff proceeds in forma pauperis, the Court may dismiss the Complaint or
any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.3 A complaint must contain “a
short plain statement of the claim showing that the pleader is entitled to relief.”4 Under the
“plausibility” standard that guides the court, a complaint must contain sufficient factual
allegations to give fair notice to defendants of the grounds of the claim against them.5 “Without
some factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on
which the claim rests.”6
To survive a motion to dismiss, a complaint must present factual allegations, assumed to
be true, that “raise a right to relief above the speculative level” and must contain “enough facts to
2
(Doc. 38).
3
28 U.S.C. § 1915(e)(2)(B).
4
Fed. R. Civ. P. 8(a)(2).
5
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
6
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)).
6
state a claim to relief that is plausible on its face.”7 Under this standard, “the mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.”8 The allegations must be
enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.9 As the Supreme Court recently explained, “[a] pleading that offers ‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”10
Additionally, “[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 11
Because the plaintiff is a pro se litigant, the court must construe his pleadings liberally
and apply a less stringent standard than that which is applicable to attorneys.12 However, the
court may not provide additional factual allegations “to round out a plaintiff’s complaint or
construct a legal theory on a plaintiff’s behalf.”13 The court need only accept as true the
7
Bell Atl. Corp v. Twombly, 550 U.S 544, 554 (2007).
8
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
9
Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir. 2008). “‘Plausibility’ in this context must refer
to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’”
Id. (internal citations omitted).
10
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557).
11
Id.
12
Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).
13
Id.
7
plaintiff’s “well-pleaded factual contentions, not his conclusory allegations.”14 Additionally, a
pro se litigant is not excused from complying with the rules of the court and is subject to the
consequences of noncompliance.15
1.
Conspiracy
Plaintiff alleges that Defendants engaged in a conspiracy under 18 U.S.C. § 371. While it
appears that Plaintiff is attempting to allege state action based on a conspiracy theory, ELC
Defendants are correct that as a criminal statute, § 371 does not convey a private cause of
action.16 Thus, Plaintiff’s conspiracy claim is dismissed.
2.
Section 1983
Pursuant to 42 U.S.C. section 1983, any person who “under color of . . . [law] . . .
subjects, or causes to be subjected, . . . any [person] . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured.” Section 1983 was enacted to provide protections to those persons wronged by the
misuse of governmental power. While the statute itself creates no substantive civil rights, it does
provide an avenue through which civil rights can be redeemed.17 To state a claim for relief in a
section 1983 action, a plaintiff must establish that he was (1) deprived of a right secured by the
Constitution or laws of the United States and (2) that the alleged deprivation was committed
14
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).
15
Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)).
16
Rockefeller v. U.S. Court of Appeals Office for Tenth Circuit Judges, 248 F. Supp. 2d 17, 22 (D.D.C.
2003).
17
See Wilson v. Stock, 52 F.3d 1547, 1552 (10th Cir. 1995).
8
under color of state law.18 “The only proper defendants in a Section 1983 claim are those who
represent the state in some capacity, whether they act in accordance with their authority or
misuse it.”19
Under certain circumstances, a private party may act under the color of state law for
purposes of § 1983.20 “Taking a flexible approach to an inherently murky calculation,” courts
use four different tests to determine whether a private individual acted under the color of law: (1)
the public function test; (2) the nexus test; (3) the joint action test; and (4) the symbiotic
relationship test.21 Under the public function test, the “court determines whether a private entity
has exercised ‘powers traditionally exclusively reserved to the State.’”22 Under the nexus test,
the court examines whether the nexus between the government and the challenged conduct is so
close that the conduct may be fairly treated as that of the state itself.23 “That is, a state normally
can be held responsible 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 in law be
deemed to be that of the State.”24 Under the joint action test, state action exists if a private party
18
See Am. Mfr’s Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).
19
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (internal quotations and
citations omitted).
20
Tool Box v. Ogden City Corp., 316 F.3d 1167, 1175 (10th Cir. 2003); see also Gallagher, 49 F.3d at 1447
(discussing these four tests).
21
Id.
22
Tool Box, 316 F.3d at 1176 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974) (listing
holding elections, performing necessary municipal functions, and running a nursing facility as powers that were
traditionally exclusively reserved to the state)).
23
Id.
24
Id. (quotations omitted).
9
willfully participates in joint action with the state by acting in concert to effect a deprivation of
constitutional rights.25 Last, under the symbiotic relationship test, a private party may be
considered a state actor “if the state ‘has so far insinuated itself into a position of
interdependence’ with a private party that ‘it must be recognized as a joint participant in the
challenged activity.’”26 This last test has been read narrowly, and requires more than “extensive
state regulation, the receipt of substantial state funds, and the performance of important public
functions.”27
The Supreme Court supplemented and clarified that these tests are entwined in the sense
that all four “are, for all intents and purposes, tools for factual analysis that ‘bear on the fairness
of . . . an attribution [of state action].’”28 Under Brentwood, courts are to “apply the tests only so
far as they force courts to zero in on the fact-intensive character of a state action
determination.”29
Here, Plaintiff’s complaint describes ELC as a local mental health center that provides
services, such as assisting mental health grant recipients to spend grant funds from agencies such
as MHAH. ELC Defendants argue that providing such services does not make an organization a
state actor, citing Dow v. Terramara, Inc.30 In that case, a non-profit organization contracted
25
Id. (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980))
26
Id. (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961)).
27
Id. (quotation omitted).
28
Brentwood Academy v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 296 (2001).
29
Id.
30
835 F. Supp. 1299, 1303 (D. Kan. 1993).
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with three counties to provide facilities and services for adult mentally handicapped people.31
The court held that although the non-profit organization “performs a public function, it cannot be
said that providing services and housing to mentally handicapped adults has been ‘traditionally
the exclusive prerogative of the State.’”32 Thus, the court held the non-profit organization in
Dow was not a state actor under the public function test. The court further held that simply
because the organization in Dow was subject to extensive state regulation “does not make . . . the
defendants state actors unless the regulation compelled or influenced” the action that resulted in
the alleged violation of the plaintiff’s rights.33 ELC Defendants argue that because they perform
similar functions to those in Dow, they likewise do not exercise powers traditionally and
exclusively reserved to the State and are thus not public actors. Moreover, because Plaintiff does
not allege any facts suggesting that state regulations governing the ELC Defendants compelled
or influenced their actions in any way, and thus the public function test does not demonstrate
state action.
Judge Lungstrum addressed the issue of whether an entity similar to ELC was a state
actor for § 1983 liability purposes in Rosewood Services, Inc. v. Sunflower Diversified Services,
Inc.,34 explaining that in 1995 the Kansas legislature enacted the Developmental Disabilities
Reform Act (“the DD Reform Act”), which provided that any community mental disability
facility would become the new community developmental disability organization (“CDDO”) for
31
Id. at1303.
32
Id. (emphasis in the original).
33
Id.
34
No. 02-2140-JWL. 2003 WL 22090897 (D. Kan. Sept. 8, 2003).
11
its existing service area and, by virtue of its designation as a CDDO, would be imbued with
certain statutory authorities and responsibilities, including disbursing funds.35 In denying
summary judgment, the court held that there was a material issue of fact regarding whether the
non-profit organization and its director engaged in conduct that can fairly be attributed to the
state and county governments because the organization administered components of the
developmental disabilities program, which serves a public purpose, and SRS and county
governments remained entwined in the organization’s administration of that program.36 In so
ruling, the court noted that although Dow involved a similar entity, that case was decided in
1993, before the DD Reform Act that created the CDDO structure was enacted.
Here, the allegations in Plaintiff’s complaint and limited representations in the ELC
Defendants’ memorandum leave the Court little to work within the confines of a Rule 12(b)(6)
motion. Plaintiff states that ELC is a local mental health agency and describes functions similar
to those discussed in Dow and Rosewood, including helping him with his “start up funds” that he
received from a federal grant to purchase household items. Although not compelling, Plaintiff’s
allegation of state action is plausible. While the ELC Defendants categorically argue about
whether they were acting under color of law, the parameters of their motion necessarily limit
them to the pleadings. Although Defendants ask the Court to take judicial notice that ELC is a
not for profit corporation, that alone does little to address the entwinement concept in which the
Court has been directed to “zero in” on the specific facts of a state action determination.
Specifically, ELC does not provide the Court with any information regarding whether it is a
35
Id. at *1.
36
Id. at *20 (citing Brentwood, 531 U.S. at 296).
12
CDDO or, for that matter, how its organization is structured or functions in providing mental
health services to its clients. Accordingly, the Court denies ELC Defendants’ motion to dismiss,
as the issue would be more appropriately resolved on summary judgment addressing the nature
of ELC’s organization and the facts specific to the color of law determination.
IT IS THEREFORE ORDERED BY THE COURT that the ELC Defendants’ Motion
to Dismiss (Doc. 51) for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is DENIED;
IT IS FURTHER ORDERED that Defendants Deb Pope and Katie Pope’s Motion to
Dismiss for failure to obtain service of process (Doc. 55) is GRANTED; Defendants are
dismissed from this cause of action, without prejudice.
IT IS SO ORDERED.
Dated: May 23, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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