Fuller v. State of Kansas, Department of Children & Families
Filing
153
MEMORANDUM AND ORDER granting 100 Motion to Dismiss Parties Stephanie Henderson, Sandra Kimmons, Lewis Kimsey and Lisa Locke. Signed by District Judge Daniel D. Crabtree on 7/24/19. Mailed to pro se party Clara R. Fuller by regular mail. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARA R. FULLER,
Plaintiff,
v.
Case No. 16-2415-DDC-JPO
STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES, et al.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This matter comes before the court on defendants Stephanie Henderson, Sandra
Kimmons, Lewis Kimsey, and Lisa Locke’s Motion to Dismiss (Doc. 100). Pro se1 plaintiff
Clara R. Fuller has filed a Response (Doc. 104) and a Supplement to her Response (Doc. 105).
And defendants have filed a Reply (Doc. 108). Although plaintiff has invoked 42 U.S.C. § 1983
as a basis for federal jurisdiction, defendants contend that plaintiff has failed to identify any
substantive federal right that defendants violated in their individual capacities. For reasons
explained below, the court grants defendants’ motion.
I.
Facts
Plaintiff alleges that defendant, the Kansas Department of Children and Families
(“DCF”), discriminated against her because of her race, gender, and age. DCF, plaintiff
contends, discriminated through actions taken by four individual DCF employees: Stephanie
1
Because plaintiff proceeds pro se, the court construes her pleadings liberally and holds them to a less
stringent standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the
court does not assume the role of advocate for the plaintiff. Id. Nor does plaintiff’s pro se status excuse her from
complying with the court’s rules or facing the consequences of noncompliance. Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).
Henderson, Lewis Kimsey, Lisa Locke, and Sandra Kimmons. Plaintiff has sued these four
employees in their official and individual capacities. Plaintiff had asserted claims against
defendants under Title VII, the Age Discrimination in Employment Act (“ADEA”), and 42
U.S.C. § 1983.
Defendants have filed a slew of Motions to Dismiss in this case. Most recently, the court
decided defendants’ fourth Motion to Dismiss. Doc. 55. In its Order, the court dismissed
plaintiff’s ADEA claim against DCF.2 Doc. 70 at 9. But, the court concluded, plaintiff had
stated facts sufficient to support a Title VII claim against DCF based on plaintiff’s termination.
Id. at 9. Last, the court noted that plaintiff had invoked 42 U.S.C. § 1983 as a basis for
jurisdiction. Id. at 6. But, the court did not reach the issue whether plaintiff’s § 1983 claim
should be dismissed.3 Instead, the court sua sponte questioned plaintiff’s failure to serve the
individual defendants in their individual capacities. Doc. 70 at 10. Noting that plaintiff had
failed to provide relevant information that the Clerk of the Court needed to prepare summons for
the individual defendants, the court ordered plaintiff to show cause why it should not dismiss the
claims against the individual defendants for failure to prosecute. Id. Plaintiff responded to the
order to show cause, and eventually, the DCF employees were served in their individual
capacities.
2
Plaintiff did not name DCF as a defendant explicitly. But, the court concluded previously that any suit
brought against DCF employees in their official capacities is a suit against DCF. Doc. 70 at 1; Doc. 36 at 3.
3
Defendants pointedly assert that the court “totally ignored that [§ 1983] does not create any substantive
rights.” Doc. 101 at 3. This argument misses the mark because the court lacked jurisdiction to consider whether the
Amended Complaint stated a claim for relief. This was so, of course, because plaintiff had not yet served the
individual defendants. Doc. 70 at 10; Doc. 47 at 2 (concluding that the court could not address defendants’
substantive arguments in a prior motion to dismiss because plaintiff had not served the individual defendants
properly) (first citing Fed. R. Civ. P. 4(k); then citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998))).
2
Defendants then filed their fifth Motion to Dismiss (Doc. 100). It makes several
arguments. First, defendants contend they have qualified immunity from plaintiff’s § 1983
claim. Doc. 101 at 5. Second, defendants contend plaintiff fails to allege a § 1983 claim because
plaintiff’s Amended Complaint (1) asserts no underlying constitutional violation and (2) fails to
allege the individual defendants’ personal involvement in the violation. Id. at 6, 11.
Defendants assert that the court must address qualified immunity first because they argue,
without citation, qualified immunity affects the court’s subject matter jurisdiction. Doc. 101 at 4
(“DCF employees file this Motion pursuant to Rule 12(b)(1) based on qualified immunity[.]”).
The court may choose between the qualified immunity question or arguments that plaintiff has
failed to state a claim, as both may be considered under 12(b)(6). Robbins v. Oklahoma, 519
F.3d 1242, 1249 (10th Cir. 2008) (considering whether plaintiff’s complaint survived individual
defendant’s qualified immunity argument raised in 12(b)(6) motion); see also Charles Alan
Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1350 (3d ed. 2019) (“The
defense of qualified or judicial immunity has also been held to be properly raised via Rule
12(b)(6) rather than Rule 12(b)(1), although one can find courts not being too particular about
the distinction.”). The court thus addresses defendants’ argument that plaintiff has alleged no
underlying constitutional violation for her § 1983 claim.
II.
Legal Standard
On a motion to dismiss for failure to state a claim, the court accepts all facts pleaded by
the non-moving party as true and draws any reasonable inferences in favor of the non-moving
party. Brokers’ Choice of Am. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
3
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.”
Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for
these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
Although this Rule “does not require ‘detailed factual allegations,’” it demands more than
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action’” which, as the Supreme Court has explained, simply “will not do.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). This is so because the court need not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 557 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation omitted)).
III.
Discussion
Plaintiff’s Amended Complaint asserts that defendants discriminated against her in
violation of 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but merely
provides relief against those who, acting under color of law, violate federal rights created
elsewhere.” Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995)
(citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). For example, in Reynolds, the
plaintiff had asserted that defendants had discriminated against her in violation of § 1983. Id.
But, the Tenth Circuit explained that plaintiff had failed “to identify an independently created
right upon which her § 1983 action rests.” Id. This omission, the Circuit held, was “fatal to her
4
claim.” Id. So, it affirmed the dismissal of plaintiff’s employment discrimination claim under
§ 1983. Id.
Consistent with the Circuit’s holding in Reynolds, district courts have dismissed § 1983
actions where the plaintiff has failed to identify the underlying substantive right. See Robles v.
Amarr Garage Doors, No. 11-2707-JAR-DJW, 2012 WL 2359423, at *8 (D. Kan. June 20,
2012) (“Plaintiff has similarly failed to identify a federal right of which Defendants deprived
him. And thus, the Court finds that Plaintiff fails to state a claim for relief under § 1983 as
well.”); Stevenson v. Indep. Sch. Dist. No. I-038 of Garvin Cty., Okla., 393 F. Supp. 2d 1148,
1152 (W.D. Okla. 2005) (“The failure to identify the substantive rights allegedly violated is
grounds for dismissal for failure to state a claim.”). The court has scrutinized plaintiff’s
Amended Complaint and her Response to defendants’ motion carefully. Neither filing identifies
the substantive right plaintiff seeks to vindicate through § 1983.
While the court must construe plaintiff’s filings liberally, it declines to read an underlying
cause of action into plaintiff’s Amended Complaint. Hall, 935 F.2d at 1110 (concluding that,
although the court construes a pro se plaintiff’s filings liberally, the court does not assume the
role of advocate for the plaintiff). The court thus dismisses plaintiff’s § 1983 claim against the
individual defendants.
IV.
Conclusion
For the reasons explained, the court grants defendants’ Motion to Dismiss (Doc. 100).
IT IS THEREFORE ORDERED BY THE COURT THAT defendants Stephanie
Henderson, Sandra Kimmons, Lewis Kimsey, and Lisa Locke’s Motion to Dismiss (Doc. 100) is
granted.
IT IS SO ORDERED.
5
Dated this 24th day of July, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?