Urista (ID 95073) v. Goddard et al

Filing 20

MEMORANDUM AND ORDER ENTERED: Defendants' Motions to Dismiss 15 & 17 are granted. The official capacity claims are dismissed without prejudice. The individual capacity claims shall be dismissed with prejudice as to Defendants Goddard, Martin, Buchanan, and Reid, and without prejudice as to Defendants Klugh and Lucht. Signed by District Judge Julie A. Robinson on 03/08/17. Mailed to pro se party Gerardo Urista by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GERARDO URISTA,
Plaintiff,
v.

Case No. 16-3135-JAR-DJW

JOHNNIE GODDARD, ET AL.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff is a prisoner at the Lansing Correctional Facility in Lansing, Kansas. He brings
this action under 42 U.S.C. § 1983, alleging due process and equal protection violations by
prison officials associated with his assignment to administrative segregation in 2015. Before the
Court are Defendants’ Motions to Dismiss (Doc. 15, 17) under Fed. R. Civ. P. 12(b)(1) and
12(b)(6). Plaintiff has not responded to the motions, nor to an Order to Show Cause why these
motions should not be granted for failure to respond (Doc. 19). The motion can therefore be
granted for failure to file a response. The motion can also be granted on the merits, as described
more fully below.
Plaintiff failed to file a response to the motion to dismiss and the time to do so has
expired.1 Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
1

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

A pro se litigant is not excused from complying with the rules of the court, and is subject to the
consequences of noncompliance.2 As a result of Plaintiff’s failure to respond, the Court may
grant Defendants’ motions to dismiss as uncontested.
The Court also finds that the Complaint must be dismissed on the merits. To the extent
Plaintiff alleges official capacity claims against these Defendants, who are all employees of the
Kansas Department of Corrections, they are barred by Eleventh Amendment immunity.3 The
individual capacity claims should be dismissed for failure to state a claim. As to Defendants
Goddard and Reed, Plaintiff fails to allege sufficient facts that they personally participated in the
alleged constitutional violations.4 Plaintiff’s Fourteenth Amendment due process claim fails to
state a claim for the reasons identified in Defendants’ motions to dismiss: he fails to sufficiently
allege that his confinement in administrative segregation at Lansing implicates a protected liberty
interest.5 Plaintiff’s Fourteenth Amendment equal protection claim fails to allege facts
identifying other inmates that are similarly situated and were treated differently.6 Moreover,
Plaintiff fails to allege facts giving rise to an inference of disparate treatment. For all of these
reasons, the Court grants Defendants’ motions to dismiss. The official capacity claims are
dismissed without prejudice. The individual capacity claims shall be dismissed with prejudice as
to Defendants Goddard, Martin, Buchanan, and Reid. They shall be dismissed without prejudice

2

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)).
3

See Hunt v. Colo. Dep’t of Corrs., 271 F. App’x 778, 781 (10th Cir. 2008) (citing Port Auth. TransHudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)).
4

See Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012) (quoting Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009)); Wilson v. Montano, 715 F.3d 847, 856 (10th Cir. 2013) (quoting Dodds v. Richardson, 614
F.3d 1185, 1199 (10th Cir. 2010)).
5

See, e.g., Estate of Dimarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1340–45 (10th Cir. 2007).

6

See, e.g., Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994).

2

under Fed. R. Civ. P. 4(m) as to Defendants Klugh and Lucht for failure to timely serve them
with the Summons and Complaint.7
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motions to
Dismiss (Doc. 15, 17) are granted. The official capacity claims are dismissed without prejudice.
The individual capacity claims shall be dismissed with prejudice as to Defendants Goddard,
Martin, Buchanan, and Reid, and without prejudice as to Defendants Klugh and Lucht.
IT IS SO ORDERED.
Dated: March 8, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

7

See Docs. 5–6 (waivers of service of summons returned unexecuted on October 11 and October 19, 2016
indicating these defendants are no longer employed by the correctional facility).

3