Turner v. Lickteig

Filing 34

MEMORANDUM AND ORDER granting in part and denying in part 14 Motion for Judgment. The motion is granted to the extent that Counts I and II of the complaint are based on allegations that defendant failed in the underlying suit to properly allege ADA damage claims against the State of Kansas defendants and claims for injunctive relief against the NCSBN. The motion is denied in all other respects. Signed by District Judge J. Thomas Marten on 9/6/2017. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARRY D. TURNER,
Plaintiff,
v.

Case No. 2:16-cv-02697-JTM

THEODORE J. LICKTEIG,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Barry Turner filed this action against the attorney that represented him
in an unsuccessful suit claiming discrimination under the Americans with Disabilities
Act (ADA). The underlying suit claimed that plaintiff should have been granted
accommodations related to his dyslexia when he took the Kansas State Board of
Nursing’s licensing exam, the NCLEX-RN. Judge Vratil granted motions to dismiss the
case. See Turner v. Nat’l. Council of State Boards. of Nursing, Inc., et al., No. 11-cv-2059KHV (D. Kan.). Plaintiff claims that the attorney, defendant Theodore Lickteig, is liable
for legal malpractice, breach of contract, and negligent misrepresentation in connection
with his representation in the suit. The matter is now before the court on Lickteig’s
motion for judgment on the pleadings. Dkt. 15. For the reasons stated herein, Lickteig’s
motion is granted in part and denied in part.
I. Summary of Complaint.
Plaintiff has had dyslexia since early childhood. The condition affects his ability
to read and his reading rate. Throughout his academic career plaintiff has requested

and received accommodations when taking exams, including receiving extra time,
having private exam rooms, and having a proctor read test questions when necessary.
In January of 2007, plaintiff received a bachelor’s degree in nursing from Bethel College
in Newton, Kansas, earning a 3.5 grade point average (an A average).
After graduating, plaintiff sought to obtain his national nursing license. The only
way to do so is by taking the NCLEX-RN Computerized Adaptive Test (CAT), which
was developed by the National Council for State Boards of Nursing, Inc. (NCSBN), and
which is distributed by the Kansas State Board of Nursing (KSBN) to test candidates for
national licensure in Kansas. The KSBN controls the issuance of nursing licenses in
Kansas and requires passage of the NCLEX-RN for a license.
In 2007, plaintiff applied in Nebraska to take the NCLEX-RN and requested
accommodations from the Nebraska board due to his dyslexia and test-taking anxiety.
The request was denied. Plaintiff took the NCLEX-RN three times in Nebraska in 2007
without accommodation and failed each time.
As an adaptive test, the NCLEX-RN changes the type and number of questions
presented depending upon a candidate’s initial answers. It is designed to require the
test-taker to answer between 75 and 265 questions. According to the complaint,
“[c]andidates that do poorly on the initial ten questions can fail the entire examination
because of the test’s dependence on the candidate’s initial responses.” Plaintiff alleges
that the CAT exam poses significant hurdles for persons with dyslexia, because “[w]ith
test anxiety being higher at the beginning of a test, it is more likely that a dyslexic will
provide a greater percentage of incorrect answers in the early stages of the exam.
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Because of this, the dyslexic test-taker is not able to obtain a passing score because
he/she is not given a sufficient number of questions later in the exam to recover from
earlier incorrect answers.”
In April 2008, plaintiff contacted the KSBN and spoke with Gary Taylor about
accommodations for his disability. Taylor allegedly promised to provide the requested
accommodations if plaintiff submitted certain materials and he told plaintiff to request
the accommodations on the test application form. Taylor allegedly said he would
contact plaintiff when he needed the materials. Plaintiff alleges that although federal
law requires the forms to contain a place to request accommodations, the form he filled
out in November 2008 (to take the exam in May 2009) had no such space or information.
When plaintiff contacted Taylor in February 2009, Taylor said that if plaintiff passed the
test with the requested accommodations, his license would be restricted. In March 2009,
plaintiff contacted the KSBN and was told that Taylor no longer worked there.
According to the complaint, the KSBN said no accommodations could be provided and
no alternative format existed for candidates with disabilities.
Plaintiff took the NCLEX-RN in May 2009 but failed the exam because his
computer prematurely shut down at question 57. This occurred even though each exam
is designed to require a test-taker to answer at least 75 questions regardless of
performance. Plaintiff alleges that when the KSBN reported his test results, it
inaccurately reported he had answered 84 questions. Plaintiff contacted the KSBN and
the NCSBN but was told there was no point in appealing because no test result had ever
been changed.
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Plaintiff alleges that academic research has revealed significant flaws with the
CAT format “that relate to those who suffer from test-taking anxiety.” In October 2009
plaintiff was diagnosed with test anxiety due to his dyslexia and a neuropsychologist
opined that he needed an alternative testing format because his condition prevented
him from being able to negotiate the CAT format.
Prior lawsuit. In 2010, plaintiff retained defendant Lickteig to file a complaint
with the KSBN and NCSBN about the discriminatory practices and effects surrounding
the NCLEX-RN. On January 31, 2011, Lickteig filed suit on plaintiff’s behalf against the
NCSBN, the KSBN, and several individuals employed by the KSBN, in Turner v. Natl.
Council of State Boards of Nursing, Inc., No. 11-cv-2059-KHV. Lickteig asserted seven
ADA claims on plaintiff’s behalf against the KSBN and its employees (referred to as the
State of Kansas defendants) in their official and individual capacities. The complaint
sought damages of more than $75,000 and unspecified declaratory and injunctive relief.
The claims included: failure to provide a location on the test application to request
accommodations (Count I); denying reasonable accommodations to a disabled person
(Counts II and III); threatening a license restriction if plaintiff sought accommodations
(Counts IV and V); failure to provide an appeal procedure for test-takers (Count VI);
and failure to provide an alternative test format (Count VII). Plaintiff asserted claims
against the NCSBN only in Counts VI and VII and only sought declaratory and
injunctive relief on those counts. Lickteig filed an amended complaint adding two
KSBN employees, including Taylor, on September 2, 2011. See Case No. 11-cv-2059KHV, Dkt. 24.
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The defendants filed a motion to dismiss the underlying amended complaint,
which was granted by Judge Vratil on April 24, 2010. Lickteig allegedly told plaintiff he
had a good chance of winning on appeal and advised him to appeal, which he did, but
the Tenth Circuit Court of Appeals affirmed the dismissal on April 2, 2014, and the U.S.
Supreme Court denied a petition for certiorari.
Plaintiff alleges among other things that Lickteig “knew and was in possession of
indisputable factual information to prove the KSBN and NCSBN were systematically
discriminating against [plaintiff] … on a prospective and on-going basis,” but he failed
to include this in the complaint, which “caused or contributed to cause the Lawsuit to
be dismissed.” Dkt. 1 at 16. He also alleges that Lickteig “knew or should have known
how to draft [plaintiff’s] complaint … to assert claims that would have prevented”
dismissal, including by stating the elements of a discrimination claim under the ADA;
by alleging constitutional claims that would have precluded the defendants from
successfully claiming Eleventh Amendment immunity; and by failing to allege various
other facts or elements that would have prevented dismissal of the lawsuit.
II. Standards Governing Rule 12(c) Motion.
The court analyzes a motion for judgment on the pleadings under the same
standards governing a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Park Univ.
Enters., Inc. v. Am. Casualty Co., 442 F.3d 1239, 1244 (10th Cir. 2006). “To survive a
motion to dismiss, a complaint must contain ‘enough facts to state a claim to relief that
is plausible on its face.’” The Estate of Lockett by & through Lockett v. Fallin, 841 F.3d 1098,
1106–07 (10th Cir. 2016), cert. denied sub nom. Lockett v. Fallin, 137 S. Ct. 2298 (2017)
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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if it
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In reviewing a motion to dismiss, the court must accept as true all well-pleaded
allegations and view those allegations in the light most favorable to the non-moving
party. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
The plausibility standard “asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Iqbal, 556 U.S. at 678. Mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action” are insufficient. Twombly, 550
U.S. at 555. Moreover, “[t]he tenet that a court must accept as true all of the allegations
contained a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
III. Discussion.
Lickteig contends a Tenth Circuit case decided after the underlying amended
complaint was filed unexpectedly precluded plaintiff’s damage claims against the State
of Kansas defendants. Dkt. 15 at 6 (citing Guttman v. Khalsa, 669 F.3d 1101 (10th Cir.
2012)). He argues that “because any legal duty owed to Plaintiff must be based on
reasonable foreseeability, the Plaintiff cannot prove an essential element of any of his
three claims.” Dkt. 15 at 6. Additionally, he argues any claim for prospective injunctive
relief “was foiled by the Plaintiff’s own statement” in response to a deposition question
in which he said he did not intend to re-take the Kansas NCLEX-RN. As for the
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underlying claims against the NCSBN, Lickteig argues that plaintiff fails to specify what
should have been pleaded in the complaint to prevent the dismissal.
1. Claims arising from ADA damage claims against State defendants.
In the underlying appeal, the Tenth Circuit found the State of Kansas defendants
were entitled to Eleventh Amendment sovereign immunity on plaintiff’s claims seeking
damages.1 Turner, 561 F.App’x at 665 (“At issue here is whether Congress validly
abrogated the states’ sovereign immunity under Title II of the ADA with respect to
claims involving professional licensing examinations. The district court concluded that
it did not. We agree.”). Plaintiff now argues the State defendants prevailed on this claim
“because Mr. Lickteig did not allege sufficient facts or allege a violation of the Fourteen
Amendment to support Mr. Turner’s claims.” Dkt. 18 at 15. Plaintiff contends Lickteig
“was in possession of sufficient facts to allege a violation of the Fourteenth Amendment
but he negligently failed to do so [thereby] preventing Mr. Turner from prevailing in
the underlying litigation.” Id.
Plaintiff’s allegations are entirely conclusory. He does not say what facts Lickteig
negligently left out of the complaint that would have stated a successful Fourteenth
Amendment claim. A plausible claim “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 546. Insofar as plaintiff’s brief identifies particular facts that defendant allegedly left

1 This ruling applied to plaintiff’s claims against the State of Kansas defendants in their official capacities.
The district court also dismissed the claims against these defendants in their individual capacities, finding
they were not “public entities” subject to liability under Title II. See Turner v. Natl. Counsel of State Bds. Of
Nursing, Inc., 2012 WL 1435295, *16 (D. Kan. Apr. 24, 2012). Plaintiff asserts no claims against Lickteig
arising out of the latter ruling.

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out of the underlying complaint (see Dkt. 18 at 4, 5, 6, 11-14), he makes no attempt to
explain how these facts would have supported a valid claim under the Fourteenth
Amendment. Plaintiff has thus failed to allege facts showing that Lickteig breached a
duty to exercise ordinary skill or knowledge in pleading these claims or that such a
failure resulted in actual loss or damage. See Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d
911, cert. denied, 540 U.S. 1090 (2003) (cite omitted) (setting forth elements of legal
malpractice claim under Kansas law). Defendant’s motion to dismiss is granted with
respect to claims that Lickteig is liable for failing to properly assert Title II ADA damage
claims against the State of Kansas defendants.
2. Claims arising from injunctive relief request against State defendants.
Plaintiff’s complaint in the underlying suit asserted claims for unspecified injunctive
relief against the State of Kansas defendants. As Judge Vratil and the Tenth Circuit
noted in their respective opinions, there is an exception to Eleventh Amendment
immunity for suits seeking to enjoin state officials from committing ongoing violations
of federal law. See Ex Parte Young, 209 U.S. 123 (1908). But for the Ex Parte Young
exception to apply, the relief sought in the complaint must be properly characterized as
prospective. Turner, 561 F.App’x at 669 (citing Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645 (2002)). The Tenth Circuit noted that plaintiff’s underlying
complaint “sought nothing more than unspecified ‘declaratory and injunctive relief,’”
and perhaps to remedy past violations (i.e., by seeking an appeal of the Kansas test
results), but it did not ask for any specific relief that was truly prospective. Id.

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Judge Vratil’s opinion likewise noted that “plaintiff does not ask the Court to
grant prospective relief, such as an order that defendants allow him to re-take the
examination with reasonable accommodations.” Case No. 11-cv-2059-KHV, Dkt. 63 at
27. She stated that plaintiff “does not seek to re-take the test examination,” citing a
representation by the State of Kansas defendants that Magistrate Judge O’Hara “asked
plaintiff through his counsel to consider making a request for reexamination, … [and] in
an email to Magistrate Judge O’Hara on August 12, 2011, plaintiff declined to do so.” Id.
at 28, n.25.2
The complaint in this case alleges that Lickteig “knew and was in possession of
indisputable factual information to prove the KSBN and the NCSBN were
systematically discriminating against Mr. Turner … on a prospective and on-going
basis. Mr. Lickteig, however, failed to include this factual information in Mr. Turner’s
complaint … which caused or contributed to cause the Lawsuit to be dismissed.” Dkt. 1
at 16. The complaint elsewhere alleges that Lickteig negligently failed “to allege [that]
Plaintiff was seeking prospective relief” and failed “to follow Plaintiff’s instructions in
the Lawsuit.” Dkt. 1 at 18-19.
In addition to the foregoing allegations in the complaint, plaintiff’s response to
the motion to dismiss adds that Lickteig “was not authorized to tell Magistrate O’Hara
that Mr. Turner did not wish to retake the examination” and that plaintiff in fact was
“seeking injunctive relief to prevent the boards from denying him reasonable
The Tenth Circuit noted plaintiff “does not deny [on appeal] that his counsel’s email statement
accurately reflected his intention at the time,” and it found that Judge Vratil could properly take judicial
notice of counsel’s representation. Even without the email, however, the Tenth Circuit found the Ex Parte
Young exception did not apply because the complaint did not specify any prospective injunctive relief.

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accommodations and prospective relief requiring the boards to provide him with an
alternative, static examination.” Id. at 17. The response brief further claims plaintiff
“did not tell Mr. Lickteig that he did not want to retake the Kansas NCLEX-RN exam,”
but rather told him “that unless reasonable accommodations were made for him to
retake the exam, he was doomed to fail.” Id. at 24. Unlike most of plaintiff’s assertions,
these allegations are specific and, assuming they are true, could potentially support the
claim that Lickteig negligently failed “to allege [that] Plaintiff was seeking prospective
relief.”
Defendant argues the court cannot consider the above factual assertions because
they are not in the complaint. The general rule is that on a motion to dismiss, the court
will only consider the facts in the complaint. See Dobson v. Anderson, 319 F. App’x 689,
701, 2008 WL 4787398 (10th Cir. 2008). But as Judge Crabtree noted in Wanjiku v. Johnson
Co., 173 F.Supp.3d 1217, 1235, n.8 (D. Kan. 2016), where the facts asserted in a response
“merely amplify” the allegations in the complaint and “do not supplant or contradict
them,” the court may consider them, particularly where the plaintiff could likely add
them under the liberal pleading standards of Rule 15(a). See also Nicol v. AuburnWashburn USD 437, 231 F.Supp.2d 1092 (D. Kan. 2002). Regardless of whether plaintiff
could ultimately prove these allegations, the court concludes that they can be
considered in the instant motion, and that they tend to support a plausible claim that
Lickteig negligently failed to allege facts and assert a claim for prospective injunctive

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relief in connection with retaking the Kansas NCLEX-RN exam. Accordingly, the
motion to dismiss is denied with respect to such a claim.3
3. Claims arising from requests for injunctive relief against NCSBN. In the
underlying suit, Lickteig pleaded for injunctive relief based on allegations that NCSBN
engaged in two forms of ADA discrimination. One was by not offering the exam in a
format other than CAT, and the other was based on NCSBN’s failure to provide an
opportunity for plaintiff to appeal his Kansas test score. The former claim was
ultimately dismissed for lack of standing and the latter was dismissed for failure to state
a claim for relief under the ADA. The dismissal of both claims apparently sprang from
the allegation that plaintiff failed the Kansas exam because his computer test shut down
prematurely and not because of any reason related to his disability. See Turner, 561
F.App’x at 671.
Lickteig’s motion to dismiss argues that plaintiff fails to specify what should
have been done to prevent the dismissal and that plaintiff lacked standing to assert the
ADA claims against NCSBN because he never requested any accommodation from that
defendant. Dkt. 15 at 12. The complaint in the instant action does not allege that plaintiff
requested any accommodation from the NCSBN.4 Plaintiff’s response merely asserts
that Lickteig was in possession of expert information “demonstrating a clear causal link
3Lickteig

asserts that plaintiff’s claim for injunctive relief was foiled by “Plaintiff’s own statement to the
Defendant” about whether he intended to retake the exam. Dkt. 15 at 7. Lickteig cites his own email
informing the court that plaintiff decided not to retake the exam. But plaintiff claims he did not tell
Lickteig he did not want to retake the exam, and on a motion to dismiss the court accepts the plaintiff’s
version of the facts as true.
4 Plaintiff alleges that in 2007 he requested accommodations from the Nebraska Board of Nursing, but the
Nebraska Board denied his request and told him the NCSBN does not make any accommodations. Dkt. 1
at ¶ 18.

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between the NCSBN’s conduct and Mr. Turner’s injuries but he negligently failed to
allege” it in the complaint. Dkt. 18 at 18. Plaintiff does not address the argument that he
never requested an accommodation from the NCSBN.
To prevail on a claim for legal malpractice in the handling of litigation, a plaintiff
must establish the validity of the underlying claim by showing that it would have
resulted in a favorable judgment in the underlying lawsuit had it not been for the
attorney’s error. Canaan, 276 Kan. at 120, 72 P.3d 911. The allegations in plaintiff’s
complaint fail to show that plaintiff could have prevailed on the ADA discrimination
claims against the NCSBN. There is no allegation that plaintiff ever notified NCSBN of
his disability or requested any reasonable accommodation from it. See J.V. v.
Albuquerque Pub. Schools, 813 F.3d 1289, 1299 (10th Cir. 2016) (public entity must provide
reasonable accommodation when it knows that the individual requires one, either
because that need is obvious or because the individual requests an accommodation).
The complaint alleges only that plaintiff made such a request of the State of Kansas
defendants. Under these circumstances, plaintiff has failed to state a valid claim for
relief insofar as he alleges that Lickteig caused the dismissal of his claims for injunctive
relief against the NCSBN by leaving out expert information on defects in CAT testing.
See Iqbal, 556 U.S. at 679 (where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged, but it has not
shown, that the pleader is entitled to relief).
4. Claim based on negligent misrepresentation. Lickteig’s motion to dismiss does
not separately address plaintiff’s negligent misrepresentation claim. Insofar as Lickteig
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argues that all of the claims fail because plaintiff could not have prevailed in the
underlying litigation after Guttman, as well as because plaintiff “indicated that he did
not intend to attempt to retake the Kansas licensure exam,” Dkt. 15 at 15, those
arguments are unavailing for reasons previously indicated. Plaintiff alleges that he did
not tell Lickteig he did not want to retake the Kansas exam and that Lickteig negligently
failed to allege a claim against the individual Kansas defendants for prospective
injunctive relief. Such a claim, if valid, would have been unaffected by Guttman’s
holding on Eleventh Amendment immunity. See McCulley v. Univ. of Kansas School of
Med., 2013 WL 1501994, *4 (D. Kan. Apr. 10, 2013) (noting that under Guttman,
determination that Title II was not valid abrogation of Eleventh Amendment immunity
was not dispositive of Ex Parte Young claim).
IT IS THEREFORE ORDERED this 6th day of September, 2017, that defendant’s
Motion for Judgment on the Pleadings (Dkt. 14) is GRANTED IN PART and DENIED
IN PART. The motion is granted to the extent that Counts I and II of the complaint are
based on allegations that defendant failed in the underlying suit to properly allege ADA
damage claims against the State of Kansas defendants and claims for injunctive relief
against the NCSBN. The motion is denied in all other respects.

___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE

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