Kirkland v. Drake et al

Filing 63

MEMORANDUM AND ORDER granting 61 ELC Defendants' Motion for Summary Judgment. IT IS FURTHER ORDERED that Plaintiff is ordered to show good cause in writing to this Court on or before October 5, 2012, why service of summons and complaint was no t made in this case upon Defendants Jason Whitmore and Colt Coffman by February 2, 2012, and shall further show good cause in writing to this Court why this action should not be dismissed as to those Defendants in its entirety without prejudice. The failure to file a timely response may result in the Complaint being summarily dismissed without further prior notice to Plaintiff Signed by District Judge Julie A. Robinson on 9/18/2012.Mailed to pro se party Wayland Dee Kirkland, 412 W 1st Street, Ottawa, KS 66067 by regular and certified mail ; Certified Tracking Number: 70111570000262700737. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WAYLAND DEE KIRKLAND,
Plaintiff,
v.

DIANE ZADRA DRAKE, et al.,
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 present and former employees of the Elizabeth Layton Center (“ELC”) 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”). Plaintiff sued Diane
Drake, the director of ELC, and ELC employees Jessica Slocum, Donna Johnson, Robin
Burgess, Jennifer Stanley, Zack Cyphers and Kevin Kastler (collectively the “ELC Defendants”)
involved in the services he received in connection with the grant. Plaintiff’s conspiracy claim
was dismissed pursuant to the Memorandum and Order issued by this Court on May 23, 2012
(Doc. 60); the Court declined to dismiss Plaintiff’s § 1983 claims on a motion pursuant to Fed.
R. Civ. P. 12(b)(6) because of inadequate information regarding the structure and function of
ELC. This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. 61).
Plaintiff has not filed a response and the time to do so has expired.1 As explained more fully
below, the ELC Defendants’ motion is granted. Plaintiff is also directed to show cause why this

1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within 21 days).

action should not be dismissed as to the remaining defendants for failure to obtain service.
I.

Summary Judgment Standard
Under D. Kan. Rule 7.4, a “failure to file a brief or response within the time specified . . .

shall constitute a waiver of the right thereafter to file such brief or response. . . .”2 Furthermore,
if a “respondent fails to file a response within the time required . . . the motion will be considered
and decided as an uncontested motion and ordinarily will be granted without further notice.”3
Nevertheless, “[i]t is improper to grant a motion for summary judgment simply because it is
unopposed.”4 This will be the case where the movant fails to make out a prima facie case for
summary judgment.5 It is the role of the court to ascertain whether the moving party has
sufficient basis for judgment as a matter of law.6 In so doing, the court must be certain that no
undisclosed factual dispute would undermine the uncontroverted facts.7
Summary judgment is appropriate if the moving party “show[s] that there is no genuine
issue as to any material fact and that [it] is entitled to judgment as a matter of law.”8 A fact is

2

D. Kan. R. 7.4.

3

Id.

4

Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006) (quoting E.E.O.C. v. Lady Baltimore Foods,
Inc., 643 F. Supp. 406, 407 (D. Kan. 1986) (citing Hibernia Nat’l Bank v. Administracion Ctl. Sociedad Anonima,
776 F.2d 1277, 1279 (5th Cir. 1985))). The Court notes, however, that failing to file a timely response to a motion
for summary judgment still waives the right to thereafter respond or otherwise controvert the facts alleged in the
motion. D. Kan. R. 7.4.
5

Id. (citations omitted).

6

Id. (citing Lady Baltimore Foods, 643 F. Supp. at 407).

7

Id.

8

Fed. R. Civ. P. 56(a).

2

only material under this standard if a dispute over it would affect the outcome of the suit.9 An
issue is only genuine if it “is such that a reasonable jury could return a verdict for the nonmoving
party.”10 The inquiry essentially determines if there is a need for trial, or whether the evidence
“is so one-sided that one party must prevail as a matter of law.”11
The moving party bears the initial burden of providing the court with the basis for the
motion and identifying those portions of the record that show the absence of a genuine issue of
material fact.12 “A movant that will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim.”13 The burden may be met by showing that there is no evidence to support
the nonmoving party’s case.14 If this initial burden is met, the nonmovant must then “go beyond
the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.”15 When examining the
underlying facts of the case, the court is cognizant that all inferences must be viewed in the light
most favorable to the nonmoving party and that it may not make credibility determinations or
weigh the evidence.16

9

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

10

Id.

11

Id. at 251–52.

12

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

13

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp., 477 U.S. at

325).
14

Id.

15

Id.

16
See Scott v. Harris, 550 U.S. 372, 378 (2007); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587 (1986).

3

Because 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.17 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.”18 The court need only accept as true the plaintiff’s “wellpleaded factual contentions, not his conclusory allegations.”19 Additionally, a pro se litigant is
not excused from complying with the rules of the court and is subject to the consequences of
noncompliance.20
II.

Uncontroverted Facts
All material facts set forth by the ELC Defendants are deemed admitted for the purpose

of summary judgment, as Plaintiff failed to specifically controvert them as required under D.
Kan. R. 56.1(a).21
Organization and Structure of ELC
ELC is a not-for-profit community mental health center licensed by the State of Kansas,
serving Miami and Franklin Counties. ELC has tax exempt status under Section 501(c)(3) of the
Internal Revenue Code. Defendants are employees and former employees of ELC: Drake is the
director; Johnson is Director of Quality Assurance and Risk Management; Burgess is a Mental

17

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

18

Id.

19

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).

20

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)(insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
21

That rule provides: “All material facts set forth in the statement of the movant shall be deemed admitted
for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.” D.
Kan. Rule 56.1(a).

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Health Therapist; Stanley is the Director of Community Support Services; Slocum and Kastler
are case managers; and Cyphers is a former case manager. Defendant Drew Whitmore is also an
employee of ELC and Defendant Colt Coffman is a former employee. Neither Whitmore nor
Coffin has been served with process.
ELC is governed by a volunteer Board of Trustees with eleven members who are selfselected. While the County may make recommendations for Board of Trustee members, it may
not appoint members. Board members include citizens from Franklin and Miami Counties. ELC
is not a community developmental disability organization (“CDDO”), but rather, a community
mental health center (“CMHC”). The CDDO for Miami County is Tri-Ko, Inc., and the CDDO
for Franklin County is COF Training Services, Inc.
ELC has a Participating CMHC Contract with the Secretary of the Kansas Department of
Social and Rehabilitation Services (“SRS”). The Participating CMHC Contract sets forth
guidelines for using funds, outcome measures, and other tasks and conditions that ELC must
complete and meet. The Contract does not provide that ELC may disburse funds to other
affiliate programs. ELC contracts with other organizations on a very limited basis. The only
contracting ELC does is to reimburse DCCCA in Lawrence, Kansas for respite services for
children. ELC only reimburses DCCCA and has no control over how DCCCA operates.
Mental Health America of the Heartland (“MHAH”) administers a housing grant called
the Blaylock grant. The funds for the grant come from MHAH. MHAH determines who
receives the money and how that money may be spent. Any purchases made with leftover
money must be approved by MHAH. ELC’s service area has two Blaylock grant slots. ELC
helps its patients apply to obtain one of those grant slots, and helped Plaintiff apply for the

5

Blaylock grant. Plaintiff was awarded a Blaylock grant on April 28, 2010. Included in the grant
were “start-up funds” to purchase household necessities with assistance from a case manager at
ELC.
Plaintiff’s Allegations22
Using the start-up funds, Plaintiff’s case manager, Defendant Slocum, purchased a
washer, dryer and refrigerator, which Plaintiff alleges were defective. Plaintiff complained
about the appliances to Slocum and was told he could use the start-up funds to repair the
appliances. During an in-home visit by Katie Pope and Deb Pope from MHAH,23 Plaintiff was
told to save his remaining start-up funds for emergencies.
In mid-July, 2010, Plaintiff placed a phone call to ELC’s Quality Assurance Coordinator,
Johnson, to complain about his grant. On or about July 26, 2010, Plaintiff went to ELC to
complain about the start-up funds and other concerns he had regarding ELC. Plaintiff maintains
that instead of addressing his concerns, Defendants Whitmore and Burgess conspired to commit
him to the Osawatomie State Hospital.
Upon his release from the State Hospital, Plaintiff phoned ELC to inquire about the startup funds and to request a new case manager. Defendant was assigned a new case manager,
Dials, who helped him spend some of the start-up funds. Dials then told Plaintiff that ELC
wanted him to use the funds to repair the washer, dryer and refrigerator. In November 2010,
another case manager, Defendant Cyphers, advised Plaintiff that he could spend “so much per
year” of the start-up funds. That same month, Plaintiff received a letter from MHAH stating that

22

These statements are allegations drawn from Plaintiff’s Complaint (Doc. 1), which Defendants set forth to
identify the issues and conduct upon which Plaintiff bases his § 1983 claims.
23
Plaintiff failed to obtain service of process on Defendants Katie Pope and Deb Pope, and the Court
granted their motion to dismiss (Doc. 60).

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start-up funds must be used within forty-five days of receipt of the grant.
Plaintiff mailed a complaint regarding the start-up funds to ELC, MHAH, the Disability
Rights Center of Kansas, and HUD in Washington, D.C. on November 15, 2010, which states
that a letter from ELC did not address Plaintiff’s concerns regarding the start-up funds. Plaintiff
contends the start-up funds “issue” brought him and Cyphers into dispute many times. Plaintiff
received a letter from the Disability Rights Center of Kansas on May 21, 2011, which he
contends was missing receipts from the purchases he made with Dials out of his start-up funds.
Defendant Stanley told Cyphers to stay away from Plaintiff because he was upset about his startup funds.
III.

Discussion
A.

Section 1983

Plaintiff alleges that the ELC Defendants violated his rights under the First, Fourth, Fifth
and Fourteenth Amendments of the United States Constitution. Plaintiff contends that the ELC
Defendants 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 move for summary judgment dismissing all claims against them because
they are not “persons acting under color of state law” as required by § 1983.
Pursuant to 42 U.S.C. § 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

7

governmental power. While the statute itself creates no substantive civil rights, it does provide
an avenue through which civil rights can be redeemed.24 To state a claim for relief in a § 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 under color of state
law.25 “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.”26
Under certain circumstances, a private party may act under the color of state law for
purposes of § 1983.27 “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.28 Under the public function test, the “court determines whether a private entity
has exercised ‘powers traditionally exclusively reserved to the State.’”29 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.30 “That is, a state normally

24

See Wilson v. Stock, 52 F.3d 1547, 1552 (10th Cir. 1995).

25

See Am. Mfr’s Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

26

Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (internal quotations and
citations omitted).
27

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).
28

Tool Box, 316 F.3d at 1175.

29

Id. 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).
30

Id.

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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.”31 Under the joint action test, state action exists if a private party
willfully participates in joint action with the state by acting in concert to effect a deprivation of
constitutional rights.32 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.’”33 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.”34
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].’”35 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.”36
The ELC Defendants argue that providing services described by Plaintiff, such as
assisting mental health grant recipients with their funds from agencies like MHAH, does not

31

Id. (quotations omitted).

32

Id. (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)).

33

Id. (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961)).

34

Id. (quotation omitted).

35

Brentwood Academy v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 296 (2001).

36

Id.

9

make an organization a state actor, citing Dow v. Terramara, Inc.37 In that case, a non-profit
organization contracted with three counties to provide facilities and services for mentally
handicapped adults.38 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.’”39 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.40 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, 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.,41 explaining that in 1995 the Kansas legislature enacted the Developmental Disabilities
Reform Act (“the DD Reform Act”), which provided that any community mental disability

37

835 F. Supp. 1299, 1303 (D. Kan. 1993).

38

Id. at1303.

39

Id. (emphasis in the original).

40

Id.

41

No. 02-2140-JWL, 2003 WL 22090897 (D. Kan. Sept. 8, 2003).

10

facility would become the new community developmental disability organization (“CDDO”) for
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.42 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.43 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.
The Court concludes that ELC is more like Terramara in Dow than the state actor
Sunflower in Rosewood. ELC is not a CDDO, but rather, a CMHC. As ELC Defendants point
out, although formed under the same statute, the organizations are distinct. K.S.A. § 19-4001
states “the board of county commissioners of any county or the boards of county commissioners
of two (2) or more counties jointly may establish a community mental health center, and/or
community facility for the mentally retarded.” In creating CDDO’s, the DD Reform Act defines
CDDO’s as “any community facility for people with intellectual disability that is organized
pursuant to K.S.A. 19-4001 through 19-4015 and amendments thereto.”44 ELC is not designated
as a facility for people with an intellectual disability, but a community health center, so it cannot

42

Id. at *1 (citing K.S.A. §§ 39-1801 to -1811).

43

Id. at *20 (citing Brentwood, 531 U.S. at 296).

44
K.S.A. § 39-1803(d). The statute was amended effective July 1, 2012, to reflect State policy to use
“intellectual disability” in place of “mental retardation.”

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be a CDDO. Moreover, by statute, a county can only have one CDDO.45 The designated
CDDOs for Miami and Franklin Counties are Tri-Ko, Inc. and COF Training Services, Inc.,
respectively, and ELC is not a CDDO for any county.
In addition, ELC does not exhibit any of the qualities of a CDDO that would suggest
state action, nor is it entwined with state or local government. ELC’s board is self-selected and
not appointed by the county commission. ELC does not control whether other organizations
receive state funds or how they are used, nor does it control how the Blaylock grant funds that
Plaintiff received are disbursed. Instead, MHAH is solely responsible for determining who
receives the grant and what restrictions and requirements are placed on how the funds are spent.
And, although ELC has a contract with SRS, ELC is merely a regulated entity that receives
government funding. As the court noted in Dow, “state regulation . . . does not make Terramara
and the other defendants state actors unless the regulation compelled or influenced the
decision.”46 There is nothing in the record that shows state regulation compelled or influenced
the interactions of which Plaintiff complains. Accordingly, the Court concludes that ELC is not
a state actor and consequently, its employees are not subject to liability under § 1983 as they are
not persons acting under the color of state law.
B.

Failure to Obtain Service

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.

45

K.S.A. § 19-4001.

46

Dow, 835 F. Supp. at 1303.

12

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 Whitmore and Coffman 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
service within twenty (20) days of the date of the Order.47 To date, neither Defendant has been
served.
Plaintiff is hereby required to show good cause in writing to this Court on or before
October 5, 2012, why service of summons and complaint was not made in this case upon
Defendants Jason Whitmore and Colt Coffman by February 2, 2012, and shall further show good
cause in writing to this Court why this action should not be dismissed as to those Defendants in
its entirety without prejudice.
IT IS THEREFORE ORDERED BY THE COURT that the ELC Defendants’ Motion
for Summary Judgment (Doc. 61) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff is ordered to show good cause in writing to
this Court on or before October 5, 2012, why service of summons and complaint was not made
in this case upon Defendants Jason Whitmore and Colt Coffman by February 2, 2012, and shall
further show good cause in writing to this Court why this action should not be dismissed as to
those Defendants in its entirety without prejudice. The failure to file a timely response may
result in the Complaint being summarily dismissed without further prior notice to Plaintiff.
IT IS SO ORDERED.

47

Doc. 38.

13

Dated: September 18, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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