Blue et al v. Farm, Inc., The et al

Filing 30

MEMORANDUM AND ORDER granting 13 defendant's Motion to Dismiss for Failure to State a Claim; granting 18 defendant's Motion for Judgment; and granting 25 defendant's Motion to Dismiss. Signed by District Judge J. Thomas Marten on 3/18/14. Mailed to pro se parties Anita K. Blue and Nicholas A. Blue by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Anita K. Blue, and Nicholas A. Blue,
Plaintiffs,
vs.

Case No. 13-1132-JTM

T.F.I, The Farm Inc., et al,
Defendants.

MEMORANDUM AND ORDER

Anita and Nicholas Blue brought the present pro se Americans with Disability Act
(ADA) claim against the Kansas Department of Health and Environment (KDHE) and The
Farm, Inc (TFI), a not-for-profit child placement service. The Civil Complaint, which is
signed by Anita Blue only, provides a factual narrative which is less than clear.1 She also
alleges that KDHE and TFI violated the ADA when they sent communications to her which
labeled Nicholas Blue as “the foster parent’s adult autistic son.” (Id.) She claims $48,000 in
lost wages, along with $3 million for “mental distress, emotional brakedowns due to
Defendants slander & deformation of character.” (Id. at 5).
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According to the state administrative record, an incident occurred in the Blue
home which resulted in an investigation by KDHE and an issuance of findings. TFI
subsequently withdrew from sponsorship of Anita Blue as a foster parent.

The matter was referred to the United States Magistrate Judge, who issued a Report
and Recommendation (Dkt. 6). The Magistrate Judge reviewed the plaintiff’s financial
circumstances and recommended that the plaintiff’s request for in forma pauperis status be
denied. Further, the Magistrate Judge recommended that the plaintiff’s motion for
appointment of counsel be denied. The plaintiff objected to the Report and
Recommendation, submitting additional financial information. (Dkt. 8). The Magistrate
Judge subsequently granted the plaintiff leave to proceed in forma pauperis, but again
denied the request for appointment of counsel. (Dkt. 9).
Both KDHE and TFI subsequently moved to dismiss the claims of the Blues. (Dkt.
13, 18). KDHE later submitted an amended motion to dismiss (Dkt. 25). The plaintiffs have
not responded to any of these motions.
Pursuant to D.Kan.R. 7.4, when a party fails to file a timely response, which for
dispositive motions is 21 days, “the court will consider and decide the motion as an
uncontested motion.” Both for good cause shown and pursuant to Rule 7.4, the defendants
motions are hereby granted. The court finds that both motions demonstrate good cause for
dismissal of the action.
Both defendants correctly argue that the action should be dismissed. First, the
threadbare claims in the Complaint fail to present any plausible basis for relief under either
the United States Constitution or the ADA. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In addition, the constitutional claims against TFI fail because there are no grounds
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for concluding that the defendant, a private, not-for-profit corporation, was acting “under
color of state law” when it decided to withdraw its sponsorship. See Hall v. Witteman, 584
F.3d 859, 864 (2009). The ADA claims fail because there is no indication that the plaintiffs
have exhausted their administrative remedies under the statute. See Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1318 (10th Cir. 2005).
The action against KDHE is dismissed because service on the defendant was
accomplished by certified letter sent to the agency’s Wichita office, rather than service on
the attorney general or assistant attorney general, as required by K.S.A. 2012 Supp. 60304(d)(5). Moreover, as an agency of the State of Kansas (K.S.A. 75-5601), the KDHE enjoys
immunity from the plaintiffs’ claim pursuant to the Eleventh Amendment. People for the
Ethical Treatment of Animals, Inc. v. Kansas State Fair Bd., 891 F. Supp. 2d 1212, 1216-17 (D.
Kan. 2012).
IT IS ACCORDINGLY ORDERED this 18th day of March, 2014, that the defendants’
Motions to Dismiss (Dkt. 13, 18, 25) are hereby granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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