Beem v. Kansas, State of et al

Filing 59

MEMORANDUM AND ORDER granting in part and denying in part 52 Motion to Dismiss. Signed by District Judge Carlos Murguia on 11/14/2011. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN D. BEEM,

Plaintiff,
v.

STATE OF KANSAS, et al.,
Defendants.

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Case No. 10-3012-CM

MEMORANDUM AND ORDER
Plaintiff Steven D. Beem, a prisoner at the Lansing Correctional Facility, brings this action
pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”). Plaintiff claims that
defendants—the State of Kansas, the Director of Division of Personnel Services in the Kansas
Department of Administration, and seven officials/employees of the Kansas Department of
Corrections—violated his First, Eighth, and Fourteenth Amendment rights. Specifically, plaintiff
contends that defendants knew of numerous ADA violations at Lansing yet failed to correct them.
Plaintiff also contends that some of the defendants retaliated against him for asserting his rights under
the ADA. Defendants filed a Motion to Dismiss (Doc. 52), in which they make the following
arguments: (1) Defendant State of Kansas has sovereign immunity; (2) the individual defendants are
entitled to sovereign immunity for the claims against them in their official capacities; (3) because the
individual defendants have only been served in their official capacities, the court must dismiss any
claims against them in their individual capacities; (4) plaintiff’s claims do not rise to the level of a
constitutional violation; and (5) the individual defendants are not liable for any ADA violations in their

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personal capacity or for any event in which they were not personally involved. For the reasons
explained below, the court grants defendants’ motion in part and denies it in part.
First, plaintiff concedes two of defendants’ arguments. Plaintiff appears to limit his claims
against the individual defendants to claims in their official capacity. And he agrees that the individual
defendants are only personally liable for their own actions. But plaintiff denies that any defendant is
entitled to sovereign immunity and maintains that he has stated constitutional violations. These
questions are intertwined, as the Supreme Court has stated that if a public entity’s disability-based
discrimination violates the constitution, the entity is not entitled to sovereign immunity and may be
held responsible for ADA violations. United States v. Georgia, 546 U.S. 151, 159 (2006). Defendants
suggest that the only question for the court is whether plaintiff’s claims constitute constitutional
violations. But the court does not believe that the question is quite that limited. Title II of the ADA
abrogates sovereign immunity not only for constitutional violations, but also “at least some classes of
conduct that do not facially violate the Constitution but are prohibited to ‘prevent and deter
unconstitutional conduct.’” Guttman v. Khalsa, 446 F.3d 1027, 1034 (10th Cir. 2006) (citing
Tennessee v. Lane, 541 U.S. 509, 518 (2004); Georgia, 546 U.S. 151). In resolving the sovereign
immunity question, the court is to consider:
which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the Fourteenth Amendment, whether
Congress’s purported abrogation of sovereign immunity as to that class of conduct
is nevertheless valid.
Georgia, 546 U.S. at 159. Defendants have not addressed these issues, and the court believes that it
cannot adequately evaluate them based on the record before it. The court therefore denies defendants’
motion based on sovereign immunity without prejudice.

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Finally, because the only claims remaining against the individual defendants are brought
against them in their official capacity, the claims are actually claims against the State of Kansas. Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s office. As
such, it is no different from a suit against the State itself.”) (internal citation omitted). If the State of
Kansas is ultimately entitled to sovereign immunity for plaintiff’s claims against it, so are the
defendants in their official capacities. But the court is not able to make that determination at this time.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss (Doc. 52) is granted in
part and denied in part.
Dated this 14th day of November, 2011, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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