Merryfield v. Kansas, State of

Filing 23

MEMORANDUM AND ORDER. Defendant's motion to dismiss (Doc. 22 ) Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) is denied. Defendant's motion to dismiss (Doc. 15 ) is granted in part and denied in part. Signed by District Judge John W. Broomes on 6/3/2024. Mailed to pro se party Dustin J. Merryfield by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DUSTIN J. MERRYFIELD,
Plaintiff,
v.

Case No. 23-3066-JWB

STATE OF KANSAS,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motions to dismiss Plaintiff’s complaint.
(Docs. 15, 22.) Defendant’s motion to dismiss Plaintiff’s claims for failure to state a claim upon
which relief can be granted is fully briefed and ripe for decision. (Docs. 15, 19, 20). Defendant’s
second motion to dismiss is not fully briefed, but the court can address its merits without Plaintiff’s
response, so the court will consider and make a decision about it in this order as well. Defendant’s
first motion to dismiss Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6) is GRANTED IN PART
AND DENIED IN PART. Defendant’s second motion to dismiss Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(1) is DENIED.
I.

Facts
Plaintiff Dustin A. Merryfield’s complaint raises constitutional concerns over the Kansas

Sexually Violent Predator Act (“KSVPA”). (Doc. 1 at 2.)
The following is the court’s summary of the relevant provisions of the KSVPA and its
Sexual Predator Treatment Program (“SPTP”). There are two phases to the SPTP: inpatient
services and supervised treatment. See Matter of Merryfield, 2022 WL 5315734 *1, 518 P.3d 459
(Kan. Ct. App. 2022). The inpatient services phase is separated into three tiers of inpatient
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services. See id. After an individual advances through all the three tiers of inpatient services, he
undergoes two levels of supervised treatment: transitional release and conditional release. See id.
As discussed more fully below, each phase in the SPTP has specific procedures and affords
different rights to the civilly committed person.
During the inpatient services phase of the SPTP, each person classified as a sexual predator
and civilly committed under the KSVPA is examined once every year to determine if his mental
condition has changed such that he can be advanced to transitional release (i.e., an annual report
of the person’s condition). See K.S.A. § 59-29a08(a). The Secretary for Aging and Disability
Services (“Secretary”) provides the person committed under the KSVPA a written notice that
informs him that he can petition a court for release if the Secretary objects to his release. Id. The
Secretary will send the annual report and the annual notice to the court that originally committed
the person. Id. If the person decides to petition the court for an annual review hearing, the person
needs to file a request for a hearing within 45 days of the court filing the written notice. See K.S.A.
§ 59-29a08(b). If the person fails to file a request for hearing within the 45-day period, the person
waives his right to an annual review hearing until the next annual report is filed. Id. However,
even if the person fails to request a hearing, a judge will conduct an in-camera review of the annual
report to determine if the person’s condition has changed such that an annual review hearing is
warranted. See K.S.A. § 59-29a08(f).
The annual review hearing only considers “whether the person is entitled to transitional
release.” Id. At the annual review hearing, the person who is civilly committed carries the burden
of proof to demonstrate via probable cause his mental abnormality or condition is significantly
changed such that the person can safely enter the transitional release phase. See K.S.A. § 5929a08(d). The person civilly committed is not entitled to attend the hearing, but the person does

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have a right for an attorney to be present. See K.S.A. § 59-29a08(e). At the probable cause hearing,
if the person is successful at demonstrating his mental abnormality has changed so that it is safe
for him to be placed into transitional release, the court will set a date for a transitional release
hearing. See K.S.A. § 59-29a08(f).
Unlike the annual review hearing, the person is entitled to be present at the transitional
release hearing. See K.S.A. § 59-29a08(g). The person is also entitled to counsel under the
KSVPA at the transitional release hearing. Id. At the transitional release hearing, the person
civilly committed has a right to have experts evaluate him. Id. The burden of proof also switches
to the government at this stage, and it must prove beyond a reasonable doubt that the person’s
mental abnormality or personality disorder “remains” the same such that the person cannot enter
the transitional release stage. Id.
A person who enters the transitional release phase must abide by every rule, regulation,
and directive associated with the transitional release program. See K.S.A. § 59-29a08(j). If the
person violates any rule, transitional staff can remove the person from the transitional phase facility
and place him back into secure confinement. Id. Treatment staff may also request an emergency
ex parte order from a district court that orders law enforcement to take the person into custody and
return him to the secure commitment facility. Id. Notably, when a person is returned to secure
commitment from the transitional release phase, there will be a hearing on the matter within two
workdays of the court receiving notice of the person being returned to the secure commitment
facility. Id. At this hearing, the state carries the burden to show probable cause that the person
violated the conditions of the transitional release, and the court then decides whether the
government successfully proved its case. Id. If it did, the person will remain at the secure

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commitment facility. Id. If it did not, the person shall be transferred back to the transitional release
facility. Id.1
Plaintiff was tried and civilly committed under the KSVPA in 2000. (Doc. 1 at 2.) He was
diagnosed with antisocial personality disorder. (Id.) Since 2000, Plaintiff has been perennially recommitted under the KSVPA. (Id.)
Plaintiff raises constitutional concerns about his annual review years 2017, 2018, 2019,
and 2020. (Id.) However, the predominant factual issue appears to be Plaintiff’s confusion about
his status under the KSVPA following the 2017 annual review and during the year of 2018. From
what the court can gather, Plaintiff advanced to the third tier of the inpatient services phase of the
SPTP, whereby he entered a reintegration house in June of 2018 that was supposed to prepare him
for transitional release. (See Ex. G, Doc. 15-7 at 1.) During his time at the reintegration house, he
made inappropriate comments to a female staff member, after which he was promptly placed back
into secure confinement. (Id.) During the years 2017, 2018, 2019, and 2020, a Kansas court did
not order Plaintiff to be placed in the transitional release phase under KSVPA. Based on Plaintiff’s
complaint, it appears he believes he entered into transitional release, which as discussed above,
would trigger specific procedures.
Plaintiff raises multiple 42 U.S.C. § 1983 claims,2 alleging that his procedural due process
rights were violated, that his right to access the courts under the First Amendment was violated,
and that he has not experienced equal protection under the law.3 The bases of Plaintiff’s claims is

1

There are additional requirements under the KSVPA to progress into conditional release—the second level of
supervised treatment—and to final release. However, that is not relevant under Plaintiff’s petition to the court.
2
The court notes that the caption of Plaintiff’s complaint names as defendant the State of Kansas. However, Plaintiff
alleges in his complaint that individual state actors violated his constitutional rights.
3
In Plaintiff’s complaint, he also raises Sixth Amendment violations pertaining to his right to attend hearings and his
right to a speedy trial. The court addresses those claims in its analysis (Section III). Moreover, Plaintiff’s requests
for relief in Section E of his complaint allege both general equal protection violations and equal protection violations
for a class of one.

4

how the KSVPA and its application to him violated his constitutional rights.4 Additionally,
Plaintiff has sought relief from Kansas state courts for at least some of the claims contained in this
petition. (Doc. 1 at 22.)
Defendant initially filed a motion to dismiss Plaintiff’s claims under Fed. R. Civ. P
12(b)(6). However, upon review of Plaintiff’s complaint, the court realized the sole Defendant
was the State of Kansas, and hence, it directed Defendant to file a motion to either explicitly waive
its Eleventh Amendment immunity or assert it as a basis to dismiss Plaintiff’s claims. Defendant
then filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), in which it asserted Eleventh
Amendment immunity as a jurisdictional bar against Plaintiff’s claims that seek retrospective
monetary relief. (Doc. 22 at 2.) The court considers each motion in this order.
II.

Standard
In order to withstand a motion to dismiss for failure to state a claim, a complaint must

contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonable inferences derived from
those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278,
1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court’s
consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). In the end,
the issue is not whether Plaintiff will ultimately prevail, but whether Plaintiff is entitled to offer
evidence to support its claims.

Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).

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Plaintiff is proceeding pro se. Hence, the court has done its best to distill and understand Plaintiff’s complaint and
the factual bases for his constitutional claims. The court notes that Plaintiff has raised similar claims—and at times,
the same claims—in state court proceedings, but that it also appears Plaintiff alleged novel constitutional claims in his
petition to this court. Hence, the court is cautious to dismiss Plaintiff’s claims on the basis of res judicata or the
Rooker-Feldman doctrine without more detailed briefing by Defendant for some claims.

5

Additionally, although the complaint typically forms the factual basis for the court’s analysis on a
Fed. R. Civ. P 12(b)(6) motion to dismiss, the court may take judicial notice of state court
documents that bear directly on the case without converting the motion to dismiss into a motion
for summary judgment.5 Hodgson v. Farmington City, 675 F. App'x 838, 841 (10th Cir. 2017).
Plaintiff is also proceeding pro se. As a general rule, a pro se litigant’s pleadings are to be
“construed liberally” and held to a “less stringent standard” than pleadings drafted by lawyers.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, a court must not become an
advocate for a pro se litigant. See id. Additionally, a court cannot discover new facts for the
plaintiff nor “construct a legal theory . . . that assumes facts that have not been pleaded.” Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989). Put differently, “conclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be based.” Hall,
935 F.2d at 1110.
III.

Analysis: 12(b)(1) Motion to Dismiss Under Eleventh Amendment Immunity  
Per the court’s order directing Defendant to either waive Eleventh Amendment immunity

or assert it as a basis for dismissing Plaintiff’s claims, Defendant filed a second motion to dismiss
any of Plaintiff’s claims for damages pursuant to Fed. R. Civ. P. 12(b)(1) under the theory that the
court lacks subject matter jurisdiction for these claims because of the Eleventh Amendment.
However, Plaintiff alleges, and Defendant acknowledges, that he is only seeking prospective
declaratory and injunctive relief. (Doc. 1 at 2; Doc. 22 at 2.) Defendant correctly notes that the
Eleventh Amendment does not bar federal courts from granting prospective injunctive or
declaratory relief. (Doc. 22 at 2.) This is true under Ex Parte Young, 209 U.S. 123 (1908), in

5

In the present case, Defendant includes as exhibits to its motion judicial decisions from Kansas state court that bear
on the present case. The court takes judicial notice of two exhibits: Exhibit G (Doc. 15-7) and Exhibit F (Doc. 15-6).
Plaintiff did not dispute the authenticity of the documents.

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which the Supreme Court held that Eleventh Amendment immunity does not extend to state
officials sued in their official capacities when the plaintiff seeks prospective relief. See Verizon
Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002) (explaining that Ex
parte Young applies to injunctive and declaratory relief that is properly characterized as
prospective); see also Tarrant Reg’l Water Dist. V. Sevenoaks, 545 F.3d 906, 911 (10th Cir. 2008)
(discussing how the doctrine of Ex parte Young permits lawsuits against state officials for
prospective injunctive relief).
However, the court directed Defendant to file a motion to assert or waive Eleventh
Amendment immunity because Plaintiff’s complaint named the State of Kansas as the sole
defendant. Hence, although Plaintiff appeared to seek only prospective relief, the court was
concerned because Plaintiff failed to name as defendant an actual state official who could be
compelled to comply with any relief ordered by the court if Plaintiff prevailed. The court hoped
Defendant (i.e., the State of Kansas) would also recognize this conundrum. It did not, and as such,
failed to argue that Plaintiff’s pleadings are deficient and run afoul of the Eleventh Amendment
for failing to name and seek prospective remedies against state officials. Instead, Defendant argued
that Eleventh Amendment immunity only bars Plaintiff’s claims/requests for monetary damages.
Thus, the court concludes that Defendant has waived its Eleventh Amendment immunity for all of
Plaintiff’s claims in which he seeks prospective injunctive and declaratory relief.
IV.

Analysis: 12(b)(6) Motion to Dismiss For Failure to State Claims that Relief can
be Granted
Defendant initially filed a motion to dismiss Plaintiff’s claims under Rule 12(b)(6). The

court considers those arguments here.
A. In Absentia Proceedings and Due Process

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Plaintiff alleges the in-absentia language from K.S.A § 59-29a08 that prohibits him from
being present at the annual probable cause hearing violates his procedural due process rights.
(Doc. 1 at 3.) One of Plaintiff’s stated causes of action is that his constitutional due process rights
were violated.6 (Doc. 1 at 2.) However, Plaintiff argues that there is both a Sixth Amendment
right to be present at any stage of a criminal proceeding and a Fourteenth Amendment due process
right to be present at any hearing. (Id.)
Plaintiff’s Sixth Amendment argument is inapplicable to his legal status under the KSVPA.
There is a Sixth Amendment right to be present at every stage of a criminal proceeding, and this
right stems from the Confrontation Clause of the Sixth Amendment. See Illinois v. Allen, 397 U.S.
337, 338 (1970). Moreover, the Confrontation Clause has been incorporated against the states, so
the “Fourteenth Amendment makes the guarantees of this clause obligatory upon the States.” (Id.)
However, the plain language of the Sixth Amendment denotes that it applies to criminal
prosecutions: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial.” U.S. CONST. amend. VI (emphasis added). The Supreme Court in Hendricks held that the
KSVPA “does not establish criminal proceedings and that involuntary confinement pursuant to the
[KSVPA] is nonpunitive.” Kansas v. Hendricks, 521 U.S. 346, 369 (1997).

Thus, Plaintiff’s

Sixth Amendment argument does not establish his right to be present at the probable cause
hearings.
Plaintiff also argues that the in-absentia provision violates his procedural due process
rights. “A procedural due process claim consists of two elements: (i) deprivation by state action

6
Plaintiff states in his complaint that a criminal defendant has a Sixth Amendment right to be present at all critical
stages of a criminal proceeding. (Doc. 1 at 3.) However, the Supreme Court has identified this right to be present at
critical proceedings as falling under the Fourteenth Amendment due process clause. See Kentucky v. Stincer, 482
U.S. 730, 745 (1987). Plaintiff’s complaint also explicitly states he is raising Fourteenth Amendment due process
violations. (Doc. 1 at 2.) Thus, based on the court’s interpretation of Plaintiff’s complaint, it appears Plaintiff raises
in Section B a Fourteenth Amendment procedural due process claim.

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of a protected interest in life, liberty, or property, and (ii) inadequate state process.” Reed v.
Goertz, 598 U.S. 230, 236 (2023). Here, liberally construing Plaintiff’s complaint, he alleges that
the state deprived him of a protected liberty interest by not allowing him to attend the annual
probable cause hearings, where it is determined if he will remain civilly committed for the next
year. And the inadequate state process is the provision in K.S.A § 59-29a08 that prohibits him
from attending the annual hearings.
The issue, however, is whether Plaintiff has a procedural due process right to be present at
the annual probable cause hearing. In addition to the situations covered by the Sixth Amendment
Confrontation Clause (i.e., when a defendant is confronting witnesses or evidence against him),
there is a right to be present at proceedings under the Fourteenth Amendment Due Process Clause
when that presence would ensure a full opportunity to defend against the charges and ensure a fair
and just hearing. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). However, Stincer is a
criminal case, and the defendant’s due process claim was based upon his exclusion from a
competency hearing that was interconnected with his criminal prosecution and trial. See id. at
732–33, 745. By contrast, “a civil commitment hearing is civil in nature,” United States v. Wood,
741 F.3d 417, 423 (4th Cir. 2013), and as discussed above, the Court has determined that the
KSVPA is properly categorized as a civil statutory scheme. See Hendricks, 521 U.S. at 369. Still,
the Court has “recognized that civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.” See Addington v. Texas, 441 U.S. 418,
425 (1979). And one of those protections, according to multiple courts, is the right to be present
at civil commitment hearings. See Bell v. Wayne Cnty. Gen. Hosp. At Eloise, 384 F. Supp. 1085,
1094 (E.D. Mich. 1974); see Lynch v. Baxley, 386 F. Supp. 378, 388 (M.D. Ala. 1974); see Kendall
v. True, 391 F. Supp. 413, 419 (W.D. Ky. 1975).

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In response to Plaintiff’s argument that he has a constitutional right to be present at the
hearings, Defendant argues that the Supreme Court in Hendricks upheld the constitutionality of
the KSVPA and determined that it does not involve criminal proceedings. (Doc. 15 at 8.) As
discussed, Defendant is correct that the KSVPA is not categorized as criminal. But Defendant
places too much reliance on Hendricks. The Court in Hendricks did not explicitly address the inabsentia provision in § 59-29a08; rather, it merely referenced § 59-29a08 with regard to conducting
annual reviews to determine if a person should continue in detention under the KSVPA. See
Hendricks, 521 U.S. at 353. Moreover, the Tenth Circuit in Ellison v. Ladner, 767 F. App’x 656
(10th Cir. 2019), explained that the due-process claim in Hendricks concerned substantive due
process, not procedural due process. See id. at 662 n.8. Thus, Defendant appears to overstate the
Court’s holding in Hendricks about the constitutionality of the KSVPA due-process procedures.
To be sure, Plaintiff’s argument that the in-absentia provision violates his Sixth
Amendment right to be present is inapplicable here. The court acknowledges, though, that it is not
clear whether Plaintiff has a Fourteenth Amendment procedural due process right to be present at
the annual probable cause hearings. Hence, at this stage in the proceeding, the court denies
Defendant’s motion to dismiss Plaintiff’s claim in Section B of his complaint that the in-absentia
provision violates procedural due process. Instead, the court also determines that further briefing
and, perhaps discovery, will help determine whether Plaintiff has a procedural due process right
to be present at the probable cause hearings.
B. In-Absentia Proceedings and Equal Protection
Defendant argues that collateral estoppel bars Plaintiff from pursuing his claim in Section
C of his complaint that the in-absentia provision in § 59-29a08 violates his equal protection rights.

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The court agrees. To properly preclude an issue from being relitigated under collateral estoppel,
Defendant must satisfy four elements:
(1) the issue previously decided is identical with the one presented in the action in
question, (2) the prior action has been finally adjudicated on the merits, (3) the party
against whom the doctrine is invoked was a party, or in privity with a party, to the
prior adjudication, and (4) the party against whom the doctrine is raised had a full
and fair opportunity to litigate the issue in the prior action.
Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000).
First: the issue raised by Plaintiff here is identical to the issue he raised in a prior case. In
2010, the Kansas Court of Appeals adjudicated this very issue for Plaintiff in Merryfield v. State,
44 Kan. App. 2d 817, 822–23, 241 P.3d 573, 577–78 (2010), where Plaintiff argued “that the
Kansas Sexually Violent Predator Act violates equal protection by treating sexual predators
different than people civilly committed under the Care and Treatment Act for Mentally Ill Persons,
K.S.A. § 59–2945 et seq., and the Care and Treatment Act for Persons with an Alcohol or
Substance Abuse Problem, K.S.A. § 59-29b45 et. seq.” Id. at 577–78. In Plaintiff’s complaint
filed with this court, he also argues that committed persons under the KSVPA are treated
differently than those committed under the Care and Treatment Act for Mentally Ill Persons and
the Care and Treatment Act for Persons with an Alcohol or Substance Abuse Problem, because
committed persons under the KSVPA are not permitted to attend their annual review hearing.
(Doc. 1 at 4.) Thus, the issue in the present case is identical to the one raised by Plaintiff in
Merryfield, 241 P.3d 573.
Second: whether the issue was fully adjudicated on the merits. The second element is
satisfied when the issue is necessary for the judgement (i.e., the issue was a necessary component
to a court’s conclusion.) See Murdock v. Ute Indian Tribe of Uintah & Ouray Rsrv., 975 F.2d 683,
687 (10th Cir. 1992). As discussed, Plaintiff previously raised an equal protection challenge to

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the KSVPA, alleging that it violates the equal protection clause because he is treated differently
than those who are civilly committed under the Care and Treatment Act for Mentally Ill Persons
and the Care and Treatment Act for Persons with an Alcohol or Substance Abuse Problem. In
Merryfield, 241 P.3d 573, the court explained that Plaintiff’s alleged equal protection violation
claim could succeed if he demonstrated that individuals civilly committed under all the three acts
endure indistinguishable situations yet are treated differently. Id. at 578. For example, Plaintiff
carried the burden to demonstrate that he and those who were civilly committed under the Care
and Treatment Act for Mentally Ill Persons had indistinguishable situations but were treated
differently. Id. The court held that Plaintiff failed to “establish that sexually violent predators are
similarly situated to others confined for mental illness with respect to treatment needs and risks to
society.” Id. Instead, the court explained that the Kansas Legislature intended to treat sexually
violent predators differently than other civilly committed individuals because of their treatment
and risk to the public. Thus, the court held that the state can treat “those found to be sexually
violent predators to treatment and confinement conditions different from those of other civilly
committed persons without violating the Equal Protection Clause.” Id.
Third: Defendant must invoke collateral estoppel against the party who was involved in
the prior adjudication. This element is also satisfied. The prior adjudication was clearly against
the present Plaintiff, as the case title bears his name. Plaintiff does not dispute this in his response.
Fourth: whether the party against whom collateral estoppel is raised had a fair and full
opportunity to litigate the issue. The analysis for this element “focus[es] on whether there were
significant procedural limitations in the prior proceeding, whether the party had the incentive to
litigate fully the issue, or whether effective litigation was limited by the nature or relationship of
the parties.” SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir. 1990). The court

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concludes that Plaintiff had a fair and full opportunity to litigate the issue in the Kansas state court
system. Based on the facts from Merryfield, 241 P.3d 573, Plaintiff’s claims were dismissed by
the state district court, but Plaintiff was able appeal the state district court’s rulings to the Kansas
Court of Appeals. Id. at 818. Some claims were even remanded back to the state district court.
Thus, Plaintiff had an opportunity to fully litigate the issues through his initial filings, appeal
process, and remand back to the state district court.
Therefore, Plaintiff’s claims based on a violation of equal protection are dismissed because
this issue has been adjudicated and collateral estoppel bars Plaintiff from raising it here.
C. Transitional Release
Plaintiff claims that his procedural due process rights were violated when he was placed
back into secure confinement in Larned State Hospital around August 18, 2019. Plaintiff alleges
that he was removed from the transition phase back to inpatient services without a hearing, and
that this removal without a hearing violated his procedural due process rights. Plaintiff argues that
he was in the transition phase of his confinement under the KSVPA when he transferred from
Larned State Hospital to a reintegration facility in Parsons, Kansas. (Doc. 1 at 5–6.) Plaintiff
raises these due process violations in Sections D, E, and I of his complaint.
Defendant offers two reasons why Plaintiff’s procedural due process claim should be
dismissed: (1) this claim is barred by res judicata, and (2) Plaintiff is mistaken about the facts of
his progression through the KSVPA treatment. The court’s analysis focuses on Defendant’s
second argument.
There are three methods for a civilly committed person under the KSVPA to enter into the
transitional release phase:
First . . . if probable cause is found at an annual review hearing pursuant to K.S.A.
59–29a08(a), the district court must hold a second hearing or trial at which the State
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has the burden to prove beyond a reasonable doubt that placement of the committed
person into transitional release is not appropriate. K.S.A. 59–29a08(c)(1), (3).
Second, if the Secretary of SRS finds that the committed person is a candidate for
transitional release, authorization may be given for the person to petition the district
court for placement pursuant to K.S.A. 59–29a10(a). Third, the committed person
can petition the district court without the Secretary's approval pursuant to K.S.A.
59–29a11(a).
In re Twilleger, 46 Kan. App. 2d 302, 308–09, 263 P.3d 199, 204 (2011). Under all three methods,
a court order is required to place a civilly committed person under the KSVPA into the transitional
release phase of the program. See id. Based on the court’s decision in Matter of Merryfield, 2000PR-000156 (Kan. 9th Jud. Dist. Ct. Sept. 29, 2020), a court order never placed Plaintiff in the
transitional release phase. (Ex. F, Doc. 15-6 at 2.) When he was transferred from Larned State
Hospital to a reintegration facility in Parsons, he was not in the transitional release stage; rather,
his transfer to the facility in Parsons was in preparation for his entrance into transitional release.
(Id.) A court never ordered that Plaintiff enter into the transitional release stage. (Id.) Hence, in
effect, Plaintiff was never released from the secured confinement stage. Therefore, the factual
basis for Plaintiff’s complaint does not exist because a court never ordered Plaintiff to be placed
in the transitional phase, so Plaintiff’s claims based upon the facts in Sections D, E, and I are
dismissed because they lack a sufficient factual basis.
D. Constitutionality of Provisions to Change Status under KSVPA
Plaintiff alleges in Section F of his complaint that the KSVPA provisions that place the
burden on him to demonstrate change in his mental status violate procedural due process. (Doc. 1
at 8.) Plaintiff also alleges a procedural due process concern about how under the KSVPA, the
state does not need to explain its findings in the annual report to demonstrate how it determines
Plaintiff’s mental abnormality has not changed. (Id.) To state a procedural due process claim,
Plaintiff must allege facts that satisfy “two elements: (i) deprivation by state action of a protected

14

interest in life, liberty, or property, and (ii) inadequate state process.” Reed, 598 U.S. at 236. For
both claims, Plaintiff alleges that he is being deprived of his liberty because he remains civilly
committed. And the inadequate processes are that (1) he bears the burden of demonstrating his
mental status has changed, and (2) that the state does not need to explain its findings for why it
concludes Plaintiff’s mental status has not changed.
To defeat Plaintiff’s allegations, Defendant relies on Kansas Supreme Court cases that held
the provisions Plaintiff takes issue with are constitutional. (Doc. 15 at 8–9.) Although the Kansas
Supreme Court may believe that the complained of provisions are constitutionally adequate, those
decisions are not binding on this court. Defendant also relies on a conclusory statement that the
provisions are constitutional because of the Supreme Court’s ruling in Hendricks, 521 U.S. 346.
(Id. at 9.) However, as already discussed, the Tenth Circuit has stated that the Supreme Court’s
analysis of the KSVPA in Hendricks pertained to substantive due process concerns. See supra
Section III.A. Therefore, without a more in-depth analysis regarding why the court should adopt
the Kansas Supreme Court rulings or regarding why Hendricks does apply in this instance, the
court declines to dismiss Plaintiff’s allegations in Section F at this stage.
E. Jurisdiction for Annual Review
The court struggles to understand what Plaintiff is alleging in Section G of his complaint.
Based on the references to other Kansas civil commitment acts, Plaintiff may be alleging an equal
protection violation. If so, the court notes that he cannot raise this claim because he is not in a
protected class of similarly situated individuals. (See supra Section III.B.) If Plaintiff is alleging
a due process violation, the court cannot make out the basis for that claim—nor can the court
become an advocate for the Plaintiff. Thus, the court dismisses any equal protection or due process
claims arising from the facts in Section G for failure to allege facts sufficient to state a claim.

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F. Holding of Griffin v. Bruffett
Plaintiff does not allege facts supporting a due process or equal protection claim in Section
H based upon Griffin v. Bruffett, 53 Kan. App. 2d 589, 598 (2017). Plaintiff merely restates the
holding and/or analysis from Griffin. Thus, Plaintiff’s due process and/or equal protection claims
based upon Griffin v. Bruffett are dismissed for insufficient pleadings.
G. Rules Equally Applying to Plaintiff and Defendants
Liberally construing Plaintiff’s facts in Section J and the related request for relief in Section
E paragraph 30, Plaintiff asks the court to declare a provision from the Kansas Rules of Civil
Procedure inapplicable to the annual review proceedings in the KSVPA (K.S.A. 59-29a08).
First, federal courts have no occasion to “vindicate the supreme authority of federal law”
when a claimant seeks relief in federal court against state officials for violations of state law. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). This applies to both
retrospective and prospective relief. Id. The Court in Pennhurst stated that “[a] federal court’s
grant of relief against a state official on the basis of state law” would not uphold the supremacy of
federal law, and as such, would intrude upon state sovereignty. 465 U.S. at 106. Such an intrusion,
according to the Court, results in a conflict with the “principles of federalism that underlie the
Eleventh Amendment.” 465 U.S. at 106. Notably, the Tenth Circuit has interpreted Pennhurst to
mean that the Eleventh Amendment “prohibit[s] a federal district court from ordering a state
official to conform their conduct to state law.” Duran v. Carruthers, 885 F.2d 1485, 1487 (10th
Cir. 1989).
Hence, because Defendant waived its Eleventh Amendment immunity for prospective
injunctive and declaratory relief, (See Section III), the court cannot rely on Pennhurst to dismiss

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Plaintiff’s request for this court to declare a provision from the Kansas Rules of Civil Procedure
inapplicable to the annual review proceedings in the KSVPA.
However, there remains a jurisdictional issue with Plaintiff's request. Plaintiff raises a
state-law claim; thus, the court does not have federal question jurisdiction as it does, for example,
over Plaintiff’s procedural due process claim in Section IV.A. Instead, the court would have to
exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) to properly consider Plaintiff’s
request. The Supreme Court has made clear, though, that federal district courts pursuant to 28
U.S.C. § 1367(c) have discretion when exercising supplemental jurisdiction. See City of Chicago
v. Int’l Coll. Of Surgeons, 522 U.S. 156, 173 (1997). Moreover, federal courts should consider the
issue of comity and the following factors when deciding whether to exercise supplemental
jurisdiction: “the circumstances of the particular case, the nature of the state law claims, the
character of the governing state law, and the relationship between the state and federal claims.”
See id.
Here, after considering the nature of the state-law claim and the issue of comity, the court
declines to exercise supplemental jurisdiction. Plaintiff requests this court to declare a state
procedural provision inapplicable to the annual review process within the KSVPA—a duly enacted
state statutory scheme. If the court were to exercise supplemental jurisdiction over this claim and
Plaintiff ultimately prevails, the court's final decision could essentially trespass upon the State of
Kansas’ sovereignty and improperly interject a federal court into state-specific matters, which are
properly left to the determination of the state’s legislative body and her courts. Thus, the court
will not exercise supplemental jurisdiction over this state-law claim.
Therefore, Plaintiff’s request for the court to declare a provision from the Kansas Rules of
Civil Procedure inapplicable to the annual review proceedings in the KSVPA is dismissed.

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Plaintiff also alleges, based upon the facts in Section J and the requests for relief in Section
E paragraphs 30–32, a violation of his right to access the courts. (See Doc. 1 at 26 ¶ 31.) Plaintiff
argues that his right to access the courts was violated when the McPherson County District Court
struck his filings associated with the annual review years 2018, 2019, and 2020. (Doc. 1 at 11.)
His filings were allegedly struck because they did not contain his attorney’s signature. (Id. at 11–
12.) Plaintiff argues that if his documents were faulty for lacking his attorney’s signature, then the
state’s filings are also faulty because they did not have the Attorney General’s signature. (Id. at
12.)
In response, Defendant argues the Rooker-Feldman doctrine bars this court from
considering Plaintiff’s allegation that his right to access the courts was violated, which would result
in a dismissal of Plaintiff’s claims. (Doc. 15 at 11–12.) This doctrine precludes an individual from
challenging an adverse state ruling in a lower federal court when (1) those claims were “actually
decided by a state court,” Kenmen Eng'g v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002)
(citing Rooker v. Fid. Tr. Co., 263 U.S. 413, 415 (1923), or (2) the claims are “‘inextricably
intertwined’ with a prior state-court judgment.” Id. (quoting D.C. Ct. of Appeals v. Feldman, 460
U.S. 462, 483 n.16 (1983)).
Defendant argues that the Rooker-Feldman doctrine bars this court from considering
Plaintiff’s claims that his constitutional right to access the court was violated because of the state
case involving Plaintiff: Matter of Merryfield, 2022 WL 5315734. There, Plaintiff argued that in
order to be fair to him, the state’s filings associated with his annual reviews must be struck because
they do not contain the Attorney General’s signature. See id. at *3. Plaintiff argued that the filings
required the Attorney General’s signature because the KSVPA is a civil statute, and K.S.A. § 60211(a) requires that all civil pleadings be signed by an attorney. The Kansas Court of Appeals

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agreed that the KSVPA is a civil statutory scheme, but it disagreed with Plaintiff’s arguments that
it must abide by K.S.A. § 60-211(a). Instead, the court held that the filing process set forth in
KSVPA § 59-29a08(a) governs how the government must file the annual review and the related
documents. See Matter of Merryfield, 2022 WL 5315734 at *5. The court of appeals held that the
district court could consider the annual reports submitted by the Secretary even though they did
not have the Attorney General’s signature. Id.
Plaintiff makes the same argument here: that if his documents were faulty for lacking his
attorney’s signature, then the state’s filings are also faulty because they did not have the Attorney
General’s signature. (See Doc. 1 at 11–12 (Section J of Plaintiff’s complaint).) He argues that
the state must abide by the same rules that require an attorney’s signature on his filings. (See id.)
Plaintiff raises the same claims as he did in Matter of Merryfield, 2022 WL 5315734. He wants
this court to review the adverse state rulings on his claims that his documents should not have been
struck for lacking his attorney’s signature and that the state must abide by the same rules. Under
the Rooker-Feldman doctrine, a federal district court cannot act as an appellate court for review of
adverse state court judgements. Kenmen Eng'g v. City of Union, 314 F.3d 468, 473 (10th Cir.
2002). Thus, Plaintiff’s access-to-court claims predicated on his improper filings and the state
being treated the same are dismissed.
H. Inadequate and Ineffective Counsel
In section K of Plaintiff’s complaint, he alleges that he has not received constitutionally
adequate and effective counsel since 2017 (Doc. 1 at 13.) Defendant moves to dismiss these
allegations, but only proffers a conclusory argument about how these claims were previously
litigated and are now barred. Defendant does not specify if it relies on res judicata or the RookerFeldman doctrine. (See Doc. 15 at 12.)

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However, the court questions whether Plaintiff has a constitutional right to counsel in his
KSVPA hearings. The constitutional right to effective assistance of counsel is derived from the
Sixth Amendment, which by its clear terms and language applies to criminal proceedings: “In all
criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” U.S.
Const. amend. VI; see also Favors v. Jesson, No. CIV. 14-3473 JRT/LIB, 2015 WL 4919969, at
*6 (D. Minn. Aug. 12, 2015) (discussing how there is no right to effective assistance of counsel in
civil commitment proceedings). Thus, numerous courts have held that there is no constitutional
right to counsel in civil commitment proceedings. See Favors, 2015 WL 4919969, at *6; see
Bumann v. Barr, No. 8:19CV552, 2021 WL 2002582, at *11 (D. Neb. May 19, 2021) (D. Minn.
Aug. 12, 2015); see Walker v. Scott, No. 4:16-CV-04021-SLD, 2017 WL 4319116, at *8 (C.D. Ill.
Sept. 28, 2017) (stating that the Supreme Court has never applied the right to effective assistance
of counsel to civil commitment proceedings). Instead, the courts have held that any right to counsel
in civil commitment proceedings must be a statutory right. See e.g., Bumann, 2021 WL 2002582,
at *11 (holding that petitioner’s right to counsel in the civil commitment proceeding is derived
from a Nebraska statute not the constitution). As discussed, the Court in Hendricks categorized
the KSVPA as civil in nature—not criminal. See 521 U.S. at 369. Thus, the annual probable cause
hearing/review is properly categorized as a civil commitment hearing, and Plaintiff would not have
a Sixth Amendment right to effective assistance of counsel during it.
Therefore, although Defendant raises conclusory arguments against Plaintiff’s ineffective
assistance of counsel claim, the court still dismisses the claim because as a matter of law, Plaintiff
does not have a constitutional right to effective assistance of counsel at his annual probable cause
review hearing.
I. Due Process Speedy Trial Alleged Violations

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In Section L of Plaintiff’s complaint, he alleges that his right to a speedy trial was violated
because his 2018 Annual review was open for 642 days. (Doc. 1 at 18.) The right to a speedy trial
found in the Sixth Amendment has been incorporated against the states via the Fourteenth
Amendment. See Jackson v. Ray, 390 F.3d 1254, 1260 (10th Cir. 2004). However, Plaintiff fails
to understand the Sixth Amendment right to a speedy trial. The plain language of the Amendment
denotes that it applies to criminal prosecutions: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The right to a speedy trial
under the Sixth Amendment attaches when a person is indicted or arrested and detaches when that
person is convicted. See United States v. Muhtorov, 20 F.4th 558, 634 (10th Cir. 2021). As already
discussed, Plaintiff is not under criminal prosecution, as the KSVPA only permits civil
commitment proceedings. See supra Section III.A. Thus, Plaintiff’s allegations in Section L that
his right to a speedy trial was violated are dismissed.
J. Failing to Hold Annual Review
Section M of Plaintiff’s complaint is titled “Failure to Hold Annual Review.” Based on a
liberal reading of Plaintiff’s complaint, it seems he is alleging a due process violation for not
holding an annual review hearing in 2017.

However, Plaintiff fails to provide the court with

sufficient facts, as it is unclear whether Plaintiff is referring to a probable cause hearing or
transitional phase hearing. If Plaintiff is referring to a probable cause hearing, he has not asserted
factual allegations to support that he was entitled to a probable cause hearing. Second, the
pleadings also indicate that Plaintiff believes that in 2017, he entered the transitional phase of
KSVPA. If this were the case, under the KSVPA, there would have been a transitional phase
hearing. At the transitional phase hearing, the government would bear the burden to prove beyond
a reasonable doubt that Plaintiff’s mental abnormality or personality disorder had not substantiality

21

changed and that he remains a danger to the public. But as discussed, Plaintiff never entered the
transitional release phase. See supra Section III.E. Thus, he was never entitled to a transitional
phase hearing. Regardless, there are simply insufficient factual allegations in Plaintiff’s Section
M for the court to come to a conclusion. Thus, Plaintiff’s claims predicated on Section M are
dismissed for failure to state a cause of action.
K. Lack of Independent Examiner
Defendant does not address Plaintiff’s allegation in Section N that the lack of an
independent examiner at the annual review probable cause hearing violates Plaintiff’s procedural
due process rights. Instead, Defendant states that “Plaintiff alleges no harm requiring . . . relief
from this [c]ourt” in Section N. (Doc. 15 at 13.)
By contrast, Plaintiff satisfies the two elements needed to state a procedural due process
claim when he alleged that the state deprived him of his liberty by recommitting him and that this
process was inadequate because he was unable to test the State’s evidence in an adversarial
setting.7 (Doc. 1 at 20 ¶ 3.) Without proper briefing from the Defendant discussing why this claim
should be dismissed, the court denies Defendant’s motion to dismiss this issue.
L. Plaintiff’s Equal Protection Class-of-One Requests for Relief
Plaintiff requests this court to analyze some of his claims of equal protection violations
under the equal protection class-of-one theory. This is a very specific claim, and a plaintiff prevails
under this theory when (1) he demonstrates that he is treated differently than others who are
similarly situated “in every material aspect,” and (2) that the difference in treatment was without
a rational basis. See Est. of Redd v. Love, 62 F. Supp. 3d 1268, 1281 (D. Utah 2014) (citing Kansas
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)). Plaintiff has failed to allege
7

To reiterate, “[a] procedural due process claim consists of two elements: (i) deprivation by state action of a
protected interest in life, liberty, or property, and (ii) inadequate state process.” Reed, 598 U.S. at 236.

22

facts indicating he was treated differently than others who are civilly committed under the KSVPA.
Thus, the court concludes that Plaintiff cannot proceed under this theory, and any requests for
relief under the equal protection class-of-one theory is dismissed for insufficient pleading.8
V.

Conclusion
Defendant’s motion to dismiss (Doc. 22) Plaintiff’s claims pursuant to Federal Rule of

Civil Procedure 12(b)(1) is DENIED. Defendant’s motion to dismiss (Doc. 15) is GRANTED IN
PART AND DENIED IN PART.
IT IS SO ORDERED. Dated this 3rd day of June, 2024.

s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

8

Plaintiff’s complaint also contains a Section O. Defendant does not raise material arguments for the claims in Section
O, but argues that they are a regurgitation of the allegations in Sections B, C, F, and G. The court notes that Section
O does repeat the allegation in Section B about due process concerns relating to a civilly committed person bearing
the burden of proof at an annual review hearing. Lastly, based on a liberal reading of Section O, Plaintiff appears to
assert allegations of equal protection violations. (See Doc. 1 at 22, ¶¶ 10, 11.) The court has ruled herein that Plaintiff
cannot raise equal protection violations (See supra Section III.B). Thus, the court holds that the allegations and claims
predicated on the facts in Section O are dismissed because they simply repeat claims which the court has dismissed
herein.

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