McNeal v. Henry et al

Filing 39

MEMORANDUM AND ORDER granting 34 Motion for Summary Judgment. See order for details. Signed by District Judge Daniel D. Crabtree on 11/9/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FLOYD E. MCNEAL,
Plaintiff,
Case No. 17-4008-DDC-KGS
v.
CORRIE L. WRIGHT,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on defendant Corrie L. Wright’s Amended Motion for
Summary Judgment (Doc. 34). Defendant filed her amended motion on June 19, 2018. The
same day, the court required defendant, under D. Kan. Rule 56.1(f), to “serve and file as a
separate document, together with the papers in support of the motion, [a] ‘Notice To Pro Se
Litigant Who Opposes a Motion For Summary Judgment’ with the full texts of Fed. R. Civ. P. 56
and D. Kan. Rule 56.1 attached.”1 Defendant electronically served and filed this notice on June
22, 2018 (Doc. 37). Once served, pro se plaintiff2 Floyd E. McNeal had 21 days to respond to
defendant’s dispositive motion. See D. Kan. Rule 6.1(d)(2). On July 23, 2018, the court issued a

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Rule 56.1 requires “[a]ny represented party moving for summary judgment against a party proceeding
pro se” to serve and file these documents.
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Because plaintiff proceeds pro se, the court construes his filings liberally and holds them to “a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (“[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.”); see also Clark v. Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006). But the court does
not become an advocate for the pro se party. See Hall, 935 F.2d at 1110. Likewise, plaintiff’s pro se
status does not excuse him from complying with the court’s rules or facing the consequences of
noncompliance. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994)).

Notice and Order to Show Cause why it should not consider and rule on defendant’s motion as
an uncontested one under D. Kan. Rule 7.4(b) (Doc. 38). The court required plaintiff to respond
on or before August 10, 2018. The record reflects that plaintiff never responded to defendant’s
motion or the court’s order.
Because plaintiff has not responded to defendant’s summary judgment motion, the court
may “consider and decide the motion as an uncontested motion.” See D. Kan. Rule 7.4(b).
“Ordinarily, the court will grant the motion without further notice.” Id. But a party’s failure to
respond to a summary judgment motion—alone—is not a sufficient basis on which to enter
judgment. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Instead, the court must
determine whether judgment for the moving party is appropriate under Fed. R. Civ. P. 56. Id.
Therefore, the court considers the merits of defendant’s summary judgment motion below.
But because plaintiff failed to file a response, he “waives the right to respond or to
controvert the facts asserted in [defendant’s] summary judgment motion.” Reed, 312 F.3d at
1195. Thus, the court accepts as true all material facts asserted and properly supported in
defendant’s summary judgment motion, as identified in the analysis below. Id.
For reasons explained below, the court grants defendant’s motion for summary judgment.
I.

Uncontroverted Facts
On January 25, 2017, plaintiff filed a Complaint asserting claims under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); 42 U.S.C.
§ 1983; section 11301 of the Homeless Assistance Act, 42 U.S.C. § 11301 et seq.; and the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Doc. 1. Plaintiff asserted these
claims against defendants Terica Henry, Corrie L. Wright, and Valeo Behavioral Health Care
(“Valeo”).

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The following facts either have been stipulated by the parties in the Pretrial Order (Doc.
30) or are uncontroverted.
Plaintiff alleges that he has experienced “severe persistent mental health problem[s]” his
whole life. Doc. 1 at 4; see also Doc. 34 at 1. He contends that defendant denied him service
when he tried to apply for two programs, Rapid Re-Housing and Shelter Plus Care. The City of
Topeka, Kansas, administers both programs. Doc. 34 at 3 (citing Docs. 34-6, 34-12).
The parties have stipulated to the following facts. Defendant is the Director of Housing
Services for the City of Topeka Department of Neighborhood Relations. She wrote a letter to
plaintiff dated January 9, 2017, letting him know that his best opportunity to secure housing was
through the Shelter Plus Care program. This letter also informed plaintiff that he must meet the
qualifications of being homeless and have one of three other disabilities—severe persistent
mental illness, chronic substance abuse, or HIV/AIDS—to qualify for the Shelter Plus Care
program. The letter notified plaintiff that if he met those qualifications, he would need to see his
case manager for an appropriate referral to the program. The letter also provided plaintiff with
Valeo’s phone number. The letter informed plaintiff that the City of Topeka did not have
temporary or immediate housing available, and it referred plaintiff to the Rescue Mission.
Plaintiff did not have a referral for Shelter Plus Care during the time period relevant to this case.
Doc. 34 at 2–3; Doc. 30 at 2–3.
Defendant represents in her motion that the City of Topeka Department of Neighborhood
Relations administers the Shelter Plus Care program. Doc. 34 at 2 (citing Doc. 34-9). She
asserts, “A qualified contracting primary service provider (such as Valeo) must make a
determination, and then give a referral to an individual who meets the program requirements of
being homeless or suffering from a targeted disability” such as severe persistent mental illness,

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chronic substance abuse, or HIV/AIDS. Id. at 3 (citing Docs. 34-5, 34-9, & 34-12). Both parties
assert that Valeo evaluated plaintiff in January 2017 for severe, persistent mental health
problems and homelessness. Id. (citing Docs. 34-3, 34-5); Doc. 1 at 4. The parties also
represent that Valeo did not refer plaintiff to the Shelter Plus Care program. Doc. 34 at 3; Doc. 1
at 4. Defendant asserts that plaintiff, because he had never secured a referral from Valeo, did not
qualify for the Shelter Plus Care program. Doc. 34 at 3 (citing Docs. 34-2, 34-3, 34-11, & 3412).
II.

Legal Standard
The court may consider uncontested summary judgment motions, but it “cannot grant

summary judgment unless the moving party has met its initial burden of production under
[Federal Rule of Civil Procedure] 56.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003).
The movant must show that “no genuine issue of material fact exists and that [she] is entitled to
judgment as a matter of law.” Id. “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the summary judgment motion is
uncontested because the nonmovant has failed to respond within the prescribed time, the nonmoving party “waives the right to respond or to controvert the facts asserted in the summary
judgment motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). If the facts the
movant sets out satisfy the summary judgment burden, the court properly can grant the motion.
Id. Conversely, if the movant’s facts fail to meet this burden, the court must deny summary
judgment “‘even if no opposing evidentiary matter is presented.’” Id. (emphasis omitted)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)).

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The movant must direct the court to “portions of the record that demonstrate an absence
of a genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita CocaCola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)). To fulfill this requirement, the moving party need only “point[] out to
the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s
claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex, 477
U.S. at 325).
III.

Analysis
Plaintiff makes several claims against the three defendants he names, as well as

organizations his Complaint does not name as defendants. Plaintiff alleges that defendant Ms.
Wright—alongside the other two defendants he names—discriminated against him on the basis
of gender and disability, violating his equal protection rights. Plaintiff has sued Ms. Wright in
her personal capacity. Plaintiff also alleges that the City of Topeka, Kansas,3 violated his rights
under the First and Fourteenth Amendments “to petition the government for redress and due
process and equal protection.” Doc. 1 at 6. The Complaint mentions § 11301 of the Homeless

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     Plaintiff has not sued the City of Topeka, Kansas, or the United States Department of Housing and Urban
Development (“HUD”), though he purports to assert claims against both organizations in his Complaint. If plaintiff
intended to sue these two organizations, his Complaint does not comply with Federal Rule of Civil Procedure 10(a).
Rule 10(a) requires a plaintiff to name all parties to the case in the “title” of his or her complaint. Fed. R. Civ.
P. 10(a). If a plaintiff fails to comply with Rule 10(a), the court may dismiss his complaint. Butchard v. Cty. of
Doña Ana, 287 F.R.D. 666, 669 (D.N.M. 2012). Rather than dismiss the Complaint, however, the court simply
holds that neither the City of Topeka, Kansas, nor HUD is a party to this case at this time. The court advised
plaintiff that he could seek leave to file an amended complaint if he wished to add either organization as a defendant.
See Docs. 16 at 3 n.2, 19 at 3 n.3; see also Johnson v. Johnson, 466 F.3d 1213, 1215 (10th Cir. 2006) (ordering the
district court to give a pro se plaintiff “an appropriate opportunity to amend his complaint to name the proper
defendants” (citation omitted)); Reid v. Okla. Pardon & Parole Bd., 67 F. App’x 515, 517 (10th Cir. 2003)
(affirming district court order finding that no action was pending against defendants not named in the complaint);
Gerlt v. United States, No. 12-3195-SAC, 2014 WL 554689, at *3 (D. Kan. Feb. 12, 2014) (“[T]his action does not
proceed against individuals who are not named as defendants in the caption. . . . Plaintiff may name additional
defendants only by filing a complete Amended Complaint in which they are correctly designated.”); Bailey v. Ash,
No. 13-3191-SAC, 2013 WL 6669098, at *2 (D. Kan. Dec. 18, 2013) (“Anyone not named in the caption will not be
treated as a defendant.”). 

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Assistance Act, but does not connect that statute to any of the named defendants, the City of
Topeka, Kansas, or the United States Department of Housing and Urban Development
(“HUD”)—both are organizations that are subjects of plaintiff’s allegations but not sued in this
action. Plaintiff’s Complaint seeks the following relief: “a declaratory judgment against all
defendants as to all regarding my true diagnosis [and] proper treatment,” $50,000 in damages
against each defendant sued in her personal capacity, and “an emergency injunction to rapidly
rehouse [him] by law.” Id. at 7.
The court discusses plaintiff’s equal protection claims against defendant Ms. Wright,
below. In her summary judgment motion, defendant makes arguments based on the Americans
with Disabilities Act (“ADA”), the Equal Protection Clause of the Fourteenth Amendment, and
the doctrine of qualified immunity. But, despite defendant’s thoroughness, the court construes
plaintiff’s Complaint as one that merely alleges personal capacity, equal protection claims
against her under 42 U.S.C. § 1983. See Doc. 1 at 6. The court does not construe the Complaint
to allege Bivens claims or claims under the ADA against defendant Ms. Wright. See Doc. 1 at 3,
6; see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
395–97 (1971) (holding that plaintiff was “entitled to recover money damages for any injuries he
. . . suffered as a result of [federal] agents’ [constitutional] violation” (emphasis added)). The
summary judgment facts properly establish that defendant Ms. Wright is a state actor—not a
federal actor—so, the Complaint fails to state a Bivens claim against her. The court thus
addresses only defendant’s equal protection and qualified immunity arguments, below.
The court begins with plaintiff’s equal protection claims. Plaintiff alleges that defendant
has “given housing vouchers to women who are homeless but not disabled and women who are
disabled and homeless but no[t] to [him] even though [he is] similarly situated to these women.”

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Doc. 1 at 5. Plaintiff also asserts that defendant “has a security guard who confessed to
[plaintiff] that he receives housing assistance from [defendant] and he works there”—the court
interprets the word “there” to mean that the security guard plaintiff references in his Complaint
works in the same place as defendant. Id.
Defendant first argues that plaintiff’s “allegations that he is ‘similarly situated’ to women
who are homeless and/or disabled who have received housing vouchers” are “conclusory.” Doc.
34 at 8. Defendant also directs the court to plaintiff’s comparison of himself to a male security
guard who allegedly receives housing assistance. Defendant argues that plaintiff’s allegations
incorporate examples of individuals who purportedly received housing assistance and are male,
female, disabled, and not disabled. Defendant asserts that these examples cannot support
plaintiff’s equal protection claim because he is not similarly situated to the individuals he lists as
examples for comparison in his Complaint. Defendant also argues that plaintiff was denied
government assistance because, without a referral from Valeo, he had failed to qualify for certain
programs, and that he was not denied assistance because of his gender or disability.
“Equal protection is the law’s keystone,” but the Fourteenth Amendment’s Equal
Protection Clause “does not forbid classifications.” SECSYS, LLC v. Vigil, 666 F.3d 678, 684–85
(10th Cir. 2012); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Rather, “[i]t simply keeps
governmental decisionmakers from treating differently persons who are in all relevant respects
alike.” Nordlinger, 505 U.S. at 10. When alleging a government classification violates the
Equal Protection Clause, a plaintiff must demonstrate that the groups being treated differently are
“similarly situated.” Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 478 (1981)
(internal quotations omitted); see also SECSYS, LLC, 666 F.3d at 684–85 (The Equal Protection
Clause “seeks to ensure that any classifications the law makes are made ‘without respect to

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persons,’ that like cases are treated alike, that those who ‘appear similarly situated’ are not
treated differently without, at the very least, ‘a rational reason for the difference.’” (quoting
Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602 (2008))).
Here, the court agrees with defendant: plaintiff has failed to support an essential element
of his equal protection claims based on gender and disability. Plaintiff has identified no facts
that show that he is similarly situated to the women and man he claims to have received housing
assistance. In his Complaint, he asserts that these women were diagnosed as having severe and
persistent mental illnesses and were given treatment and housing referrals through the Shelter
Plus Care program. Doc. 1 at 4. Plaintiff’s Complaint also contends that a male security guard
receives housing assistance and works in the same place as defendant. But plaintiff’s Complaint
never alleges that this security guard has been diagnosed with a mental illness or another
disability. Id. at 5. But both parties agree that Valeo evaluated plaintiff for severe and persistent
mental illness and did not classify him as having such an illness. And though plaintiff alleges
that he “notice[d] that there were other people who were similarly situated to [him] regarding
[their] disabilities,” he provides no support for these allegations. He does not explain how he is
similarly situated in all relevant ways to the women and man he says received housing
assistance. The court recognizes at least one salient difference between plaintiff and the
individuals he references in his Complaint: Valeo did not classify plaintiff as having a severe
and persistent mental illness, but plaintiff alleges that the individuals who received housing
assistance were women diagnosed with such illnesses and a man whom plaintiff has not shown—
or alleged—was diagnosed with a mental illness or other disability.
The court also considers defendant’s qualified immunity defense. Defendant asserts in
her summary judgment motion that she has qualified immunity from the suit in this case because

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she was acting within the scope of her employment. “[G]overnment officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The
plaintiff bears the burden of establishing both (1) that the defendant violated a constitutional
right and (2) that the right had been clearly established by the time of the violation.” Tenorio v.
Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). And the Tenth Circuit has held that, if a party fails
to establish that the conduct in question “amounted to a violation of the law,” the court “need not
reach the issue of whether the law was clearly established at the time” of the alleged violation.
Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993); see also Tonkovich v. Kan. Bd. of
Regents, 159 F.3d 504, 516 (10th Cir. 1998) (“[T]he better approach to resolving cases in which
the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a
deprivation of a constitutional right at all. Normally, it is only then that a court should ask
whether the right allegedly implicated was clearly established at the time of the events in
question.” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998))).
Here, because the court concludes that plaintiff has not supported an essential piece of his
equal protection claims, it agrees with defendant. She is entitled to qualified immunity. Under
the first of the two requirements plaintiff must satisfy to challenge defendant’s qualified
immunity from suit, plaintiff bears the burden to demonstrate that defendant violated his
constitutional rights. But, as discussed above, the court determines that plaintiff has failed to
adduce admissible evidence supporting facts that could support his claims that defendant violated
his constitutional rights. Thus, the court declines to consider whether the constitutional right in

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question was established clearly at the time of the alleged violation and concludes that defendant
has qualified immunity from suit here.
The court also holds that defendant sufficiently has identified plaintiff’s lack of evidence
on an essential element of his equal protection claims—i.e., that he is similarly situated to the
individuals he says received housing assistance. Defendant is entitled to qualified immunity
from this suit because of plaintiff’s failure to support his claims of constitutional violations. The
court thus concludes that the facts defendant provides in her uncontroverted motion satisfy the
burden she bears for summary judgment.
IV.

Conclusion
For reasons explained, the court grants defendant Corrie L. Wright’s Motion for

Summary Judgment. The court concludes that plaintiff has failed to support an essential element
of his equal protection claims and, in any event, that defendant is entitled to qualified immunity
from this suit.
IT IS THEREFORE ORDERED THAT defendant Corrie L. Wright’s Amended
Motion for Summary Judgment (Doc. 34) is granted.
IT IS SO ORDERED.
Dated this 9th day of November, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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