Odhuno v. Reed's Cove Health and Rehabilitation, LLC et al
Filing
153
MEMORANDUM AND ORDER granting in part and denying in part 105 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 12/14/2018. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN PAUL ODHUNO,
Plaintiff,
vs.
Case No. 15-1347-EFM-GEB
REED’S COVE HEALTH AND
REHABILITATION, LLC d/b/a AVITA;
AXIOM HEALTHCARE SERVICES, LLC;
AUDREY SUNDERRAJ; CAROL
SCHIFFELBEIN; CHRISTAN ROSE;
TERESA FORTNEY; TREVA BANUELOS;
and TIM KECK, in his official capacity as
Secretary of the Kansas Department for
Aging and Disability Services,
Defendants.
MEMORANDUM AND ORDER
Plaintiff John Paul Odhuno was employed as a certified nurse aide (“CNA”) at a long-term
care facility owned by Defendant Reed’s Cove Health and Rehabilitation, LLC d/b/a Avita
(“Avita”).
In late July 2014, the Kansas Department for Aging and Disability Services
(“KDADS”) investigated the facility after receiving an anonymous tip of alleged resident abuse.
During the investigation, Avita terminated Odhuno’s employment. Odhuno now asserts claims
against KDADS Secretary Tim Keck and five KDADS employees involved in the investigation:
Audrey Sunderraj, Carol Shiffelbein, Christan Rose, Teresa Fortney, and Treva Banuelos (the
“KDADS employees”). He alleges that they violated his Fourteenth Amendment rights to due
process and equal protection. Additionally, he alleges that the KDADS employees committed the
tort of outrage under Kansas law.
This matter comes before the Court on Defendants’ Motion for Summary Judgment (Doc.
105). The KDADS employees assert the defense of qualified immunity, and Defendant Keck
asserts that he is entitled to sovereign immunity under the Eleventh Amendment. In response to
the motion, Odhuno decided not to oppose the summary judgment motion of Defendants
Schiffelbein, Fortney, and Banuelos and filed a response only as to the summary judgment motion
of Defendants Rose, Sunderraj, and Keck.1 As explained in more detail below, the Court concludes
that Defendants Rose and Sunderraj are not entitled to qualified immunity and that Defendant Keck
is not entitled to sovereign immunity. Therefore, the Court grants in part and denies in part
Defendants’ motion.
I.
A.
Factual and Procedural Background
KDADS Relationship with Centers for Medicaid and Medicare Services (“CMS”)
Under 42 U.S.C.A. § 1395a, the State of Kansas entered into an agreement (the
“Agreement”) with the Secretary of Health and Human Services (the “Secretary”) to determine
whether a provider or supplier meets specific standards of participation in the federal Medicare
and Medicaid programs. The Agreement provides that the State of Kansas, through a KDADS
surveyor, is required under § 1864(a) of the Social Security Act to survey providers or suppliers
in Kansas that are participating in Medicare and/or Medicaid services. In addition, the Agreement
defines the role of the surveyors as federal contractors surveying on behalf of the Secretary. The
1
Odhuno does not concede or agree to the dismissal of his state law claims against these Defendants.
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surveyors are required to make reports in the form and containing the information required by the
Secretary. To complete the surveys, they generally follow forms created by CMS or Health and
Human Services.
Long-term care facilities, such as Avita, must follow federal conditions of participation to
obtain coverage under the Medicare program.2 Included in these conditions are rules governing
the reporting and investigation of resident abuse.3 Federal regulations define “abuse” as “the
willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting
physical harm, pain or mental anguish.”4 If there is an allegation of resident abuse, a facility must
(1) immediately report the allegation to “other officials in accordance with State law through
established procedures”;5 (2) thoroughly investigate all allegations of abuse, prevent further abuse
while the investigation is in progress, and report the investigation findings within five days to the
appropriate state officials;6 and (3) immediately report to KDADS if there is “reasonable cause to
believe that a resident is being or has been abused, neglected or exploited.”7
KDADS receives reports of alleged abuse through a hotline managed by the agency.8
KDADS will review the report and conduct a survey to determine whether the long-term care
2
42 C.F.R. § 488.3(a).
3
Id. § 483.13
4
Id. § 488.301
5
Id. § 483.13(c)(2).
6
Id. § 483.13(c)(3)-(c)(4).
7
K.S.A. § 39-1402(a).
8
See id. 39-1411(a).
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facility meets the conditions of participation in the Medicare program.9
It also makes
recommendations to CMS, which will determine whether the long-term care facility is eligible to
participate in the Medicare program.10
The final results of the survey and CMS’ determination are provided to the long-term care
facility.11 If the facility is not in compliance with the conditions of the Medicare program, KDADS
will provide a description of the specific deficiencies that resulted in that determination.12 The
long-term care facility may appeal the survey findings through the process set forth in the federal
Medicare regulations.13
If the KDADS investigation substantiates that a CNA abused a resident, the investigation
is forwarded to the KDADS legal department.14 In this situation, the KDADS surveyor is required
to fill in a particular box on the “complaint processing form,” which is sent to KDADS
headquarters with all documents gathered during the investigation.15
The KDADS legal
department then determines whether to initiate proceedings against the CNA and place a
prohibition on the Kansas Nurse Aide Registry. After the investigation is completed, and if a
9
42 C.F.R. § 488.10(a)(1); 42 C.F.R. § 488.11(a).
10
Id. § 488.11(a) and § 488.12(a).
11
Id. § 488.12(b).
12
Id. § 488.18(a).
13
Id. § 488.330(e).
14
See K.S.A. § 39-1411(b); 42 C.F.R. § 488.335 (imposing requirements on states to implement procedures
for review and investigation of abuse, neglect, or exploitation).
15
Defendants Rose and Sunderraj call this form by different names. Rose calls it the “complaint processing
form,” while Sunderraj calls it the “complaint cover sheet.” The Court will refer to it as the “complaint processing
form.”
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finding of abuse, neglect, or exploitation is made, a Notice of Action is sent to the CNA.16 This
Notice of Action may be appealed under the Kansas Administrative Procedure Act.17 If a CNA
decides not to appeal the Notice of Action or if after an appeal the finding of abuse, neglect, or
exploitation is upheld, then the finding of abuse is placed on the KDADS website18 and a
prohibition against employment will be placed on the Kansas Nurse Aide Registry.19 Prospective
employers must review the online CNA Registry before employing a CNA.
B.
Complaint Investigation at Avita
Odhuno is a black male who is originally from Kenya. Odhuno was employed as a CNA
at Avita—which is operated by Defendant Axiom Healthcare Services, LLC (“Axiom”). On July
31, 2014, KDADS began a complaint survey at Avita based on an anonymous complaint made to
the KDADS hotline. The complaint stated that Avita failed to investigate and report an allegation
of resident abuse purportedly committed by a black male nurse.
One of the KDADS surveyors was Defendant Rose. On the first day of the investigation,
Rose spoke with the resident regarding the alleged abuse. She took notes and prepared a
handwritten statement for the resident to sign, which states in part:
It hasn’t happened for a while but it has gone on for the last couple of months, since
the Spring. It is a black man and he tells me he is a nurse. My son stayed all night
not too long ago and the black man tried to come in then, but I think it scared him
away when he saw my son. For 3 days after that, he stayed away. . . . He would
come in my room late at night without knocking and say he was trying to see if my
pants were wet and touch my bottom. I’m not making it sounds as bad as it actually
was. One time on a weekend when there wasn’t anyone else around, on a holiday,
16
K.S.A. § 39-1404(a); K.A.R. § 26-4-1; 42 C.F.R. § 488.335.
17
K.S.A. § 39-1411(a); K.A.R. § 26-4-1; 42 C.F.R. § 488.335.
18
See https://www.kdads.ks.gov/commissions/scc/abuse-neglect-or-exploitation.
19
42 C.F.R. § 483.156(c)(iv)(C); 42 C.F.R. § 488.335(f).
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he took me outside and rolled me around on the ground. I don’t know what he was
trying to do. I hit him on the arms and it made him mad and he finally gave up. He
has come back and tried to do it again and I have fought him off. . . . It has gone on
for a couple of months, and there were a lot of times he came in and messed with
me. I was very scared every time I saw him. I have lost so much sleep over this.
Rose admits that there was no concrete evidence that the abuse occurred and that she did not find
any evidence during her investigation that someone rolled the resident on the ground outside the
facility. Rose testified, however, that the allegation was substantiated because “[r]egardless of
whether abuse actually happened or not, [the resident] suffered emotional distress because of the
facility’s failure to protect her after she made an allegation of abuse. That substantiates the
allegation.”
Rose interviewed the resident’s son, John Bertelson, during the investigation by phone.
Bertelson told Rose that he had not seen any physical evidence of abuse; he had only heard his
mother make the allegations. Bertelson further stated that his mother suffered from some memory
loss, but that it had improved a lot and that she seemed to be the person he knew her to be. He
also said that he had spoken with her several times about the incident and that the resident’s story
was always the same. Rose testified, however, that even if Bertelson had told Rose he didn’t
believe abuse had occurred, it would not have made a difference in Rose’s investigation or
findings. According to Rose, the facility would still have been cited for the failure to protect the
resident after an allegation was made.
Rose had several phone conversations on July 31 with Defendant Sunderraj, who was the
Director of Survey & Certification for KDADS. Sunderraj was not Rose’s direct supervisor, but
because Rose’s immediate supervisor was unavailable that day, she discussed the investigation
with Sunderraj instead. At some point, Rose and Sunderraj discussed whether to place the facility
in “immediate jeopardy.” As defined in the regulations, the term “immediate jeopardy” means “a
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situation in which the provider’s . . . non-compliance with one or more Medicare requirements,
conditions of participation, conditions for coverage or certification has caused, or is likely to cause,
serious injury, harm, impairment, or death to a resident or patient.”20 Ultimately, Sunderraj
determined that Avita should be in “immediate jeopardy” status and advised Rose to inform its
administrator of the news.
Rose advised Avita’s administrator of the immediate jeopardy status around 3:30 p.m. on
July 31 by reading out loud a “Prepared Warning Statement.” Under KDADS protocol, this
statement is to be read whenever an alleged perpetrator poses a continuing risk of abuse to the
complaining resident and/or other residents. The Prepared Warning Statement states as follows:
Prepared Warning Statement
The prepared warning statement is read to a facility if and when an alleged
perpetrator is still working in the facility. This statement is read privately to the
administrator only after:
1. the surveyor has investigated and gathered enough evidence to strongly support
a finding of abuse, neglect or exploitation by the AP
2. discussion with and concurrence of the Regional Manager
Once the surveyor has discussed findings with the Regional Manager, the following
statement should be read to the administrator. The surveyor needs to document the
time & date the statement was read, as well as the names of those persons present.
“As a result of my investigation, I am informing you that there may be a risk to the
residents as a result of (alleged perpetrator’s name) presence in your facility. You
need to investigate (or continue with your investigation) and determine whether
(alleged perpetrator’s name) poses a threat to the victim or other residents in the
facility. Adult care home regulations specifically require that the facility do
whatever is necessary to prevent potential abuse, neglect, and exploitation while
investigations are in progress.”
20
42 C.F.R. § 488.1.
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When Rose read this statement to Avita, she identified Ohduno as the alleged perpetrator.
After the immediate jeopardy announcement, Rose discussed with Avita’s administrator,
Vanessa Underwood, its plan to abate immediate jeopardy status. Initially, Underwood was only
going to suspend all black male nurses, but when Rose questioned her, asking “just nurses?”
Underwood decided to suspend all black male employees, including a cook, regardless of whether
they ever provided any care to the resident. The suspensions were lifted the next day (August 1)
after Avita investigated and determined that the alleged abuse did not occur. KDADS knew of the
reinstatements by the end of the day on August 1.
On August 4, Sunderraj received and reviewed four emails with voluminous attachments
from Underwood. Those emails and attachments contained the facility’s investigation of the
resident’s allegations after immediate jeopardy was announced. Avita’s investigation revealed
that no abuse occurred.
On August 5, Rose and Sunderraj discussed Avita’s Amended Plan of Correction
requesting that KDADS abate immediate jeopardy status. The Amended Plan of Correction
showed that Avita had reassigned all male staff, including Odhuno, so that they would not work
in the resident’s unit or provide her care due to her stated preference for personal care only by
female staff.
That same day, at approximately 4:22 p.m., a meeting was held at Avita in which Rose
appeared in person and Sunderraj appeared by telephone. Representatives of Avita and Axiom
also attended. During the meeting, Rose and Sunderraj conveyed to Avita that they believed the
residents in the other houses were “at risk” from Odhuno. According to Sunderraj, she was not
assured at the time of the call that the facility had done everything they could to keep the residents
safe, especially the resident who made the abuse allegation at issue. Sunderraj also told Avita that
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merely moving Odhuno to a unit where the resident was not housed was not acceptable to abate
the facility’s immediate jeopardy status. Although the KDADS Defendants dispute that these
conversations took place, a memorandum from this call reports that the following conversations
took place or words to this effect:
Audrey (Sunderraj) then asked Christan (Rose) if she had anything else? Christan
said, “No, nothing else, other than my concern for the resident.” Audrey then stated
she was not sure that moving him (sic) to a different house was an effective
intervention because that placed the other residents at risk. Christan then asked
Vanessa (Underwood, Avita’s Administrator) “How can you be 100% certain this
did not happen?” Kim (Summers of Axiom) asked “How can you be 100% certain
that it did?” Audrey then said “We are done. We have shared with you that we are
very concerned. Your IJ (immediate jeopardy) status will be determined by the
decisions you make regarding this employee (Odhuno).” Christan said again “We
will let you know the status of your IJ when you let us know the status of his
suspension. Actually, his employment.” Christan then left the room and the phone
call with Audrey was ended.
A few minutes after the August 5 meeting concluded, an Axiom representative told Rose
of Avita’s decision to terminate Odhuno’s employment. Avita’s immediate jeopardy status was
abated within minutes of Rose receiving this information. Avita, however, still received monetary
penalties of more than $73,000 for the period before immediate jeopardy status was abated. If
immediate jeopardy status was not abated, all federal Medicare/Medicaid funding to Avita would
have been terminated within 23 days.
The next day, on August 6, Rose met with Avita’s administrator and two other Axiom
representatives. Notes taken by one of the Axiom representatives state:
So we’re going to terminate Paul without knowing exactly what he did & without
interviewing him? Yes. Because it doesn’t matter what he did because she believes
it happened. He has caused her harm. It will be in the written report, that this is an
IJ because he caused harm.
After completing the investigation, Rose prepared and signed several documents. On
August 11, 2014, Rose completed and signed the complaint processing form. Rose did not
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complete the box referring the abuse allegation to the KDADS legal department for additional
investigation. On August 13, 2014, Rose prepared the complaint processing form that was
reviewed and approved by Sunderraj. That form states that “[b]ased on observation, interview,
and record review, the allegation of abuse was substantiated. . . . On 8/5/14, at 4:45 p.m., the
surveyor with Audrey Sunderraj via speakerphone, talked with the facility about our concerns and
told them the results of our investigation revealed strong evidence the alleged perpetrator was Paul
Oduno, CNA.” That report is maintained by KDADS, but it is not a public document.
Additionally, Rose prepared a Statement of Deficiencies, dated August 14, 2014, which
was also reviewed and approved by Sunderraj. In the initial comments, Rose noted that “the
facility failed to protect [the] resident from abuse and mental anguish.” In addition, the Statement
of Deficiencies noted that:
The facility abated the immediate jeopardy on 8/5/14 at 5:00 p.m. when the facility
completed their investigation, provided re-education on ANE to all employees on
reporting allegations, suspended all non-Caucasian staff of the opposite gender
that were in the building the time the immediate jeopardy was identified, then all
non-Caucasian staff of the opposite gender until the facility’s investigation was
complete. The alleged perpetrator was also removed from the facility and was not
expected to return.
This deficient practice of failure to report, thoroughly investigate and report an
allegation of abuse, exploitation, and protect residents during the investigation
remained at a scope and severity of an F.
Finally, CMS has produced an Alleged Perpetrator Information Form pursuant to a business
records subpoena. This form is undated and unsigned, and Rose denies completing it. Odhuno is
identified as the alleged perpetrator on this form. It also states that his Avita employment was
terminated on August 5, 2014.
Rose testified as follows regarding the results of her investigation:
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Q. So you did not substantiate that Miss Cornett’s buttocks had been touched
inappropriately by a staff member?
A. I had no concrete evidence to show what happened.
Q. Okay. Did you ever have any concrete evidence to substantiate that some staff
member had looked into her room at night and grinned at her?
A. I did not.
Q. That was one of her allegations, wasn’t it?
A. Yes.
Less than three weeks after Rose prepared the Statement of Deficiencies, Bertelson (the resident’s
son) signed an affidavit stating that he informed Underwood that his mother determined on her
own that the incident never happened. The affidavit further stated that his mother’s mind was clear
and that she was confusing a dream with reality. The affidavit was presented to KDADS.
Bertelson subsequently signed another affidavit stating in part:
9. During the Kansas Department of Health and Environment’s (sic) survey of the
facility in July and August 2014, I spoke with the surveyor on one occasion
regarding my mother and the allegations.
10. That conversation solely related to my mother’s allegation that a black male
nurse rolled her around in the grass. During that conversation, the surveyor did not
question me about any allegations involving inappropriate touching.
11. On September 1, 2014, my daughter and I visited with my mother. During our
conversations, my mother reported to me (and my daughter) that the whole incident
involving a black man was just a dream and she knows that now.
This affidavit was also presented to KDADS. KDADS did not reopen its investigation of the
resident’s abuse allegation after receiving Bertelson’s affidavits.
Odhuno has not been able to find work as a CNA since his termination from Avita. He
interviewed for and was offered a position as a CNA at a facility in Haysville, Kansas, but after
receiving his schedule and a tuberculosis shot, he was told to wait for a call from an administrator
to begin work. He never received a call and did not obtain employment with that facility. In
addition, some of the job applications Odhuno filled out asked whether he had ever been accused
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of sexual abuse. Odhuno answered this question by stating, “I will explain.” None of these
applications resulted in employment.
C.
This Lawsuit
Odhuno filed this lawsuit on November 3, 2015. After amending his complaint several
times, he filed a third Amended Complaint on September 9, 2016. That complaint asserts claims
against Avita, Axiom, the KDADS employees, and Tim Keck, the Secretary of KDADS. First,
Odhuno asserts a Title VII discrimination claim based on his race, national origin, and gender
against Avita. Second, he asserts discrimination claims under § 1981 based on his race and
national origin against Avita and Axiom. Third, he brings a § 1983 claim against the KDADS
employees in their individual capacities asserting that they violated his Fourteenth Amendment
rights to procedural due process and equal protection of the laws. Fourth, he asserts a § 1983 claim
against Defendant Keck in his official capacity seeking prospective equitable relief based on
violations of his Fourteenth Amendment rights of due process and equal protection. Fifth, Odhuno
asserts claims under Kansas law for the tort of outrage against the KDADS employees, Avita, and
Axiom. And sixth, he asserts a Bivens claim against the KDADS employees for violation of his
Fourteenth Amendment rights.
The KDADS employees and Defendant Keck filed a motion for summary judgment
seeking dismissal of Odhuno’s federal claims. Odhuno filed a Rule 56(d) motion seeking
additional discovery to respond to the summary judgment motion, which the Court denied.
Odhuno then decided only to oppose the summary judgment motion as to Defendants Rose,
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Sunderraj, and Keck.21 The parties have extensively briefed the issues, and the motion is ripe for
the Court’s consideration.
II.
Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
issue as to any material fact, and the movant is entitled to judgment as a matter of law.22 A fact is
“material” when it is essential to the claim, and issues of fact are “genuine” if the proffered
evidence permits a reasonable jury to decide the issue in either party’s favor.23 The movant bears
the initial burden of proof and must show the lack of evidence on an essential element of the
claim.24 If the movant carries its initial burden, the nonmovant may not simply rest on its pleading
but must instead “set forth specific facts” that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the nonmovant.25 These facts must be clearly
identified through affidavits, deposition transcripts, or incorporated exhibits—conclusory
allegations alone cannot survive a motion for summary judgment.26 The Court views all evidence
and reasonable inferences in the light most favorable to the party opposing summary judgment.27
21
Odhuno has not agreed to the dismissal of his state-law claims against Defendants Schiffelbein, Jackson,
Fortney, and Banuelos.
22
Fed. R. Civ. P. 56(a).
23
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
24
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 325 (1986)).
25
Id. (citing Fed. R. Civ. P. 56(e)).
26
Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671 (10th Cir. 1998)).
27
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
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III.
Analysis
Defendants make several arguments as to why Odhuno’s claims must be dismissed. First,
they argue that Odhuno lacks Article III standing to bring his claims. Second, Defendants
Sunderraj and Rose assert that they are entitled to qualified immunity on the § 1983 and Bivens
claims. Third, Defendant Keck argues that he is entitled to sovereign immunity under the Eleventh
Amendment. And fourth, Defendants argue that the Court should decline to exercise supplemental
jurisdiction over the remaining state-law claims.
A.
Standing
Article III standing is a threshold question central to the Court’s subject matter
jurisdiction.28 To establish Article III standing, a “plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.”29 The plaintiff bears the burden of showing that
Article III standing exists.30
Odhuno asserts the following three claims as sources of standing against Defendants:
(1) the revocation or effective revocation of his CNA certification without due process of law; (2)
the loss of his good name and reputation without due process of law; and (3) intentional
discrimination based on his race, gender, and national origin. Defendants contend that Odhuno
lacks Article III standing because he has not shown a harm that is fairly traceable to their conduct.
However, for both of his due process claims Odhuno has submitted evidence that indicates
28
United States v. McVeigh, 106 F.3d 325, 334 (10th Cir.1997)
29
Spokeo, Inc. v. Robins, -- U.S. --, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)).
30
Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
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Defendants Sunderraj and Rose were responsible for his termination. For example, the August 5
meeting ended with Defendants informing Avita that they would inform it of its immediate
jeopardy status when Avita informed Rose of Odhuno’s employment status. While Defendants
now argue that Avita was in immediate jeopardy because it failed to report the abuse allegations
and conduct its own investigation, by the time of the August 5 meeting, Avita had already sent
KDADS the results of its own investigation that revealed no abuse occurred. KDADS, however,
only abated the immediate jeopardy after learning of Odhuno’s termination. In addition, notes
taken from a meeting with Rose on August 6 indicate that Rose believed Odhuno committed the
abuse and that’s why the facility was placed in immediate jeopardy. This evidence is sufficient to
show that Defendants’ conduct is fairly traceable to any deprivation of due process rights Odhuno
may have suffered.
For Odhuno’s equal protection claim, Odhuno has produced evidence indicating that Rose
insisted that Avita suspend all black male staff while Avita investigated the allegation. This
evidence is also sufficient to tie Odhuno’s equal protection claim to Defendants. Thus, despite
Defendants’ insistence that they had nothing to do with Odhuno’s termination, the evidence
suggests otherwise. Odhuno has satisfied his burden to show that he suffered harm that is fairly
traceable to Defendants’ conduct, and he has Article III standing to assert his claims.
B.
Qualified Immunity
Defendants Rose, Sunderraj, and Keck assert the defense of qualified immunity to
Odhuno’s § 1983 and Bivens claims.31 When a defendant raises the defense of qualified immunity,
31
Although Defendant Keck has asserted the defense of qualified immunity, it is not available to him because
he has not been sued in his individual capacity. He has only been sued in his official capacity. See Trask v. Franco,
446 F.3d 1036, 1043 (10th Cir. 2006) (“The defense of qualified immunity shields government officials
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the plaintiff must satisfy a two-part test.32 First, the plaintiff must establish that the defendant’s
actions violated a constitutional or statutory right.33 And second, the plaintiff must demonstrate
that the right at issue was clearly established at the time of the defendant’s unlawful conduct.34
Qualified immunity applies unless the plaintiff can satisfy both prongs of the inquiry.35 The Court
has discretion to decide the order in which to examine these two prongs.36
A right is clearly established if “there [is] a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.”37 The “plaintiff cannot simply identify a clearly established right in
the abstract and allege that the defendant has violated it.”38 The Court must instead analyze
“whether the violative nature of particular conduct is clearly established.”39 The plaintiff,
however, does not have to produce a “reported case directly on point” to prevail.40 Instead, the
performing discretionary functions from liability for civil damages arising from claims brought against them in
their individual capacities.”) (emphasis added) (citation omitted).
32
Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation omitted). A Bivens suit “is the
federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Hartman v. Moore, 547 U.S. 250,
255 n.2 (2006). Therefore, the Court will address these claims together.
33
Estate of Booker, 745 F.3d at 411.
34
Id.
35
Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir.2009) (citing Pearson, 555 U.S. at 232).
36
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
37
Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (quoting Stearns v. Clarkson, 615 F.3d 1278,
1282 (10th Cir. 2010)).
38
Herring v. Keenan, 218 F.3d 1171, 1176 (10th Cir. 2000) (citation and internal quotation marks omitted).
39
Ziglar v. Abbasi, -- U.S. --, 137 S. Ct. 1843, 1866 (2017) (quoting Mullenix v. Luna, -- U.S.--, 136 S. Ct.
305, 308 (2015)).
40
Id. at 1867 (citation and internal quotation marks omitted).
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Court must evaluate whether “the unlawfulness of the officer’s conduct [is] ‘apparent’ ” in light
of pre-existing law.41
When the defendant has moved for summary judgment based on qualified immunity, the
Court still views the facts in the light most favorable to the non-moving party and resolves all
factual disputes and reasonable inferences in its favor.42 “Unlike most affirmative defenses,
however, the plaintiff [] bear[s] the ultimate burden of persuasion at trial to overcome qualified
immunity by showing a violation of clearly established federal law.”43 Thus, at summary
judgment, the Court must grant qualified immunity unless the plaintiff establishes: “(1) a
reasonable jury could find facts supporting a violation of a constitutional right, which (2) was
clearly established at the time of the defendant’s conduct.”44 If a plaintiff carries this burden, then
the defendant must show that no genuine issues of material fact exist that would defeat the claim
for qualified immunity.45
Odhuno claims that Rose and Sunderraj deprived him of his Fourteenth Amendment right
to procedural due process based on a property interest theory and a liberty interest (stigma-plus)
theory. He also claims that Rose and Sunderraj intentionally discriminated against him based on
his race, gender, and national origin in violation of Fourteenth Amendment right to equal
protection of the laws. The Court will address each claim below.
41
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
42
Estate of Booker, 745 F.3d at 411.
43
Id.
44
Id. (citations omitted).
45
Id. at 412 (citing Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996)).
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1.
Deprivation of Due Process Based on Odhuno’s CNA Certification
Odhuno contends that Sunderraj and Rose “effectively revoked” his CNA certification
without due process of law when they “conveyed their purported belief to [Defendant Avita] on
August 5, 2014, that plaintiff was guilty of abusing the resident despite absolutely no evidence to
support that allegation.” According to Odhuno, this finding was “made and published” to Avita
without notice to Plaintiff or an opportunity for a hearing. In support of his claim, Odhuno relies
primarily on the Tenth Circuit’s decision in Stidham v. Peace Officer Standards and Training.46
The plaintiff in Stidham was a law enforcement officer certified by the State of Utah who
sought employment in the law enforcement field.47 Despite being highly ranked among the
number of potential job candidates, the plaintiff was rejected by several prospective employers.48
The plaintiff was informed that the state certification agency was informing potential employers
that he allegedly raped a young girl, assaulted a resident, and resigned from his previous position
under threat of termination.49 The state agency, however, had not suspended or revoked the
plaintiff’s certification and officially maintained that he was eligible for hire.50 The plaintiff
brought a § 1983 claim against the state agency and its director alleging that the officer had been
unconstitutionally deprived of a liberty interest in his certification without due process of law.51
46
265 F.3d 1144 (10th Cir. 2001).
47
Id. at 1149.
48
Id.
49
Id.
50
Id.
51
Id.
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The Tenth Circuit first addressed whether the plaintiff had a constitutionally-protected right
in his state-issued certification as a law enforcement officer.52 Discussing prior Supreme Court
precedent, the Tenth Circuit stated: “[T]he revocation or removal of a license or certificate that is
‘essential in the pursuit of a livelihood’ requires procedural due process under the Fourteenth
Amendment.”53
The Tenth Circuit concluded that because the plaintiff’s certification both
required and enabled him to work as a peace officer in Utah, he retained a protected property right
in his peace officer certificate.54
Next, the Tenth Circuit addressed whether the defendants deprived him of due process by
effectively revoking his law enforcement certification.55 The plaintiff argued that even though his
certification was not formally suspended or revoked, the defendants “effectively revoked” his
certificate by disseminating the allegations to potential employers.56 In analyzing this issue, the
Circuit first noted that the defendants exceeded their authority under state law and ignored the state
statutory requirements for due process.57 The statutory authority governing the defendants did not
allow the director or the council to report information about an officer to potential employers other
than the state agency’s normal role of evidencing certification status.58 The Tenth Circuit then
52
Id. at 1150.
53
Id. at 1150 (quoting Bell v. Burson, 402 U.S. 535, 539 (1971)).
54
Id.
55
Id. at 1150-52.
56
Id. at 1150.
57
Id. at 1151.
58
Id. at 1152.
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analyzed whether the defendants deprived plaintiff of his property interest in his certification under
federal law.59 The Circuit concluded that they had, stating:
Defendants have disseminated false and fatally damaging allegations against [the
plaintiff] to his potential employers. Defendants have done this in lieu of statutory
procedures, in excess of their statutory authority, and in contravention of statutorily
mandated procedural due process. More importantly, the consequence of
Defendants’ actions is that [the plaintiff] cannot use his certificate to obtain
employment . . . A state agency cannot escape liability for depriving an individual
of a legitimate property interest merely by arguing that it has not revoked or
destroyed the actual legal title to that interest. Actions taken by the State which
destroy the value or utility of a protected property interest constitute a Fourteenth
Amendment deprivation of that interest for which due process cannot be denied.60
There is no dispute in this case that Odhuno had a constitutionally protected right in his
CNA certification at the time of his termination in August 2014. Kansas law requires KDADS to
certify any individual who successfully completes the required training and passes the state CNA
exam.61 Odhuno was a certified CNA while he was employed at Avita.
But, that is where the similarities between Stidham and this case end. Odhuno has failed
to provide any evidence, even inferential evidence, that Rose and Sunderraj “effectively revoked”
his CNA certification. There is no evidence that Rose and Sunderraj provided information
regarding the circumstances of his termination to any potential employer. Furthermore, the
complaint processing form, which was prepared by Rose under Sunderraj’s supervision and edits,
is not publicly available. The only publicly available information on the KDADS website
concerning the investigation is the Statement of Deficiencies and that document does not contain
Odhuno’s name. It only refers to an “alleged perpetrator.”
59
Id.
60
Id. at 1153.
61
K.A.R. § 26-50-20; see also K.S.A. § 39-1908(a) and (c).
-20-
Odhuno argues that he was deprived of his CNA certification when Defendants informed
Avita that there was “strong evidence” that Odhuno committed abuse. But this statement alone, is
not sufficient to “effectively revoke” Odhuno’s CNA certification. The Stidham court found that
the defendants “effectively revoked” the plaintiff’s law enforcement certification when they
disseminated false information about the plaintiff to multiple potential employers. Here, Rose and
Sunderraj only informed his current employer of his involvement in the abuse. There is no
evidence they informed multiple future employers thereby destroying the value of his CNA
license. Accordingly, Odhuno has failed to provide specific evidence that Defendants Rose and
Sunderraj deprived him of a constitutionally protected property interest without due process.
Odhuno has also failed to satisfy the second prong to overcome the defense of qualified
immunity—a clearly established constitutional right. The Court cannot find, and Odhuno has not
pointed to, any authority protecting a CNA from arbitrary interference in his employment by a
state agency. The only case cited by Odhuno that comes close to granting such a right is Federal
Deposit Insurance Corp. v. Mallen.62
The plaintiff in Mallen was the president and a director of a federally insured bank who
was indicted on federal charges of making false statements to the FDIC.63 Before the plaintiff was
convicted, the FDIC issued an ex parte order suspending him from his duties and prohibiting him
62
486 U.S. 230 (1988). Odhuno also cites Bell v. Burson, 402 U.S. 535 (1971), in support of his argument.
The plaintiff in that case filed suit against the director of public safety who suspended the plaintiff’s driver’s license
because the plaintiff caused an automobile accident. Id. at 537-38. The Supreme Court found that the license “may
become essential in the pursuit of a livelihood” and that the hearing was not meaningful because the director rejected
the plaintiff’s proffer of evidence on liability where the “statutory scheme makes liability an important factor in the
State’s determination to deprive an individual of his licenses.” Id. at 539-41. Here, however, Odhuno’s license has
not been suspended or revoked. Therefore, Bell does not establish that Rose and Sunderraj violated clearly established
law.
63
Mallen, 486 U.S. at 236-37.
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from working for any FDIC-insured bank.64 The plaintiff demanded a hearing and the FDIC
granted him one, but he sued before it could occur.65 The Supreme Court held that it was
“undisputed” that the FDIC could not arbitrarily interfere with the employment of a regulatedbank’s employee.66 It also held, however, that the FDIC’s conduct was not arbitrary and that
process the FDIC was prepared to give (a post-deprivation hearing) was sufficient.67
The Tenth Circuit discussed Mallen in a recent unpublished opinion—Coleman v. Utah
State Charter School Board.68 In that opinion, the Circuit recognized that the Supreme Court has
“long held that the government may not arbitrarily interfere with private employment.”69 It also
noted that in Mallen, the Supreme Court recognized “a right against governmental interference
with employment in the context of regulated banking.”70 But, the Tenth Circuit declined to extend
Mallen beyond the specific facts of that case.71 Indeed, the Circuit stated that it has never explicitly
recognized a claim for arbitrary governmental interference with private employment “beyond the
circumstances encountered by the Supreme Court.”72
Although the Tenth Circuit’s opinion in Coleman was unpublished and therefore nonbinding, it is still persuasive. The opinion thoroughly analyzes relevant case law setting forth
64
Id. at 238.
65
Id. at 239.
66
Id. at 240.
67
Id. at 248.
68
673 F. App’x 822 (10th Cir. 2016).
69
Id. at 831
70
Id. at 832.
71
Id. at 833.
72
Id. at 832-33.
-22-
when government interference in private employment is a violation of a clearly established
constitutional right. Given the Tenth Circuit’s reluctance to extend this right to situations beyond
those explicitly found in Supreme Court precedent, the Court declines to do so here. Thus, Mallen
does not support a clearly established constitutional right that defeats Rose and Sunderraj’s claims
of qualified immunity. The Court grants Rose and Sunderaj’s motion for summary judgment as
to Odhuno’s § 1983 and Bivens claims for deprivation of property interest without due process of
law.
2.
Deprivation of a Liberty Interest in Odhuno’s Good Name and Reputation
Odhuno next alleges that Rose and Sunderraj deprived him of a liberty interest in his good
name and reputation without due process of law. Odhuno argues that when Rose and Sunderraj
told Avita there was “strong evidence” that he committed the abuse, this caused Avita to fire him
and severely injure his good name and reputation thus preventing any future employability.
According to Odhuno, these allegations constitute a “stigma plus” which entitle plaintiff to
procedural due process in the form of a “name clearing” hearing.
“An employee has a liberty interest in his good name and reputation as it affects his
protected property interest in continued employment.”73 This liberty interest is only infringed,
however, if a plaintiff meets a four-part test set forth by the Tenth Circuit.74 In addition to meeting
§ 1983’s state action requirement, the plaintiff must show that “(1) the statements impugned his
good name, reputation, honor, or integrity; (2) the statements were false; (3) the statements
occurred in the course of terminating the employee or will foreclose other employment
73
Bjorklund v. Miller, 467 F. App’x 758 (10th Cir. 2012).
74
Id.
-23-
opportunities; and (4) the statements were published.”75 The Tenth Circuit has clarified that the
third element of the test is conjunctive—meaning that the employee must show both that the
defamatory statement occurred in the course employment termination and that it will foreclose
other employment opportunities.76
At this stage in the litigation, Odhuno has come forward with sufficient evidence to satisfy
this four-part test. First, the evidence shows that Rose and Sunderraj made several statements that
impugned Odhuno’s good name and reputation. The complaint processing form states that the
allegation of abuse was substantiated and that Rose informed Avita that there was “strong
evidence” that Odhuno was the alleged perpetrator.77 During the August 5 meeting regarding
Avita’s immediate jeopardy status, Sunderraj and Rose stated that they were concerned for any
resident that would be cared for by Odhuno, implying that Odhuno was a dangerous individual
who committed the abuse. And during an August 6 meeting between Rose, Avita, and Axiom,
Rose stated that Odhuno committed the abuse and that’s why the facility was in immediate
jeopardy.
Second, Odhuno has shown that the statements were false. Affidavits from the resident’s
son show that the resident later realized that the facts underlying her allegation were only a dream.
The resident now understands that the abuse never occurred.
75
Id. (citing Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994)).
76
Id. (citing Guttman, 669 F.3d at 1126).
77
Defendants argue that the complaint processing form did not indicate that the abuse occurred. Instead,
Defendants claim that the language “the allegation of abuse was substantiated” means that Rose substantiated that the
resident made an allegation of abuse and was fearful or anxious because of abuse she suffered. The Court finds the
language in the complaint processing form to be ambiguous, and at this stage in the litigation, it must be read in the
light most favorable to Odhuno.
-24-
Third, the statements occurred in the midst Odhuno’s employment termination and have
foreclosed other employment opportunities.
According to the Tenth Circuit, a roughly
contemporaneous remark that concerns the “ ‘manner or reasons for the employee’s termination’
may qualify as one made ‘in the course of termination of employment.’ ”78 In this case, Avita
terminated Odhuno after being informed that there was “strong evidence” that he was the alleged
perpetrator, and more importantly, after the August 5 meeting with Defendants regarding Avita’s
immediate jeopardy. In addition, Odhuno has not been able to obtain employment since his
termination. On several employment applications, Odhuno was required to answer whether he had
ever been accused of sexual abuse. Odhuno’s response was “I will explain,” but none of these
applications ever resulted in employment opportunities. The Tenth Circuit has held that “[o]nly
where the stigmatization results in the inability to obtain other employment does [a government
employment defamation] claim rise to a constitutional level.”79 The stigmatization from Odhuno’s
response on these applications has made him unemployable. Had Rose and Sunderraj not falsely
implicated Odhuno in the abuse, he would not have been required to answer this question
affirmatively.
And fourth, Odhuno has shown that Rose and Sunderraj’s statements were published. In
the context of a liberty interest claim, “publication” is accorded its ordinary meaning, which is “to
be made public.”80 Rose and Sunderraj made the statements concerning Odhuno to Avita and
78
Id. at 768 (quoting Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d 723, 727 (10th Cir. 2000)).
79
Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir. 1991), disapproved of on other grounds,
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir. 2000).
80
Harrison v. Board of Cty. Comm’rs for Adams Cty, Colo., 775 F. Supp. 365, 367 (D. Colo. 1991) (citing
Bishop v. Wood, 426 U.S. 341, 348 (1976)).
-25-
Axiom. These are third parties. They are not governmental agencies.81 Therefore, the statements
were made public.
Odhuno has satisfied the four-part test necessary to show a deprivation of a liberty interest
in his good name and reputation. He was therefore entitled to a name-clearing hearing, which
Defendants did not provide.82 Accordingly, Odhuno has satisfied the first prong of qualified
immunity—violation of a constitutional right.
The Court next examines the second prong of qualified immunity—whether the law was
clearly established. Several Tenth Circuit cases decided before August 2014 support Odhuno’s
§ 1983 and Bivens claims for deprivation of a liberty interest in his good name and reputation.83
In Brown v. Montoya, the defendant wrongly required the plaintiff to register as a sex offender and
be placed in the sex offender probation unit upon release from custody.84 The plaintiff brought
suit under § 1983 alleging that his procedural due process rights had been violated, and the
defendant sought qualified immunity.85 On appeal from the district court’s denial of qualified
immunity, the Tenth Circuit applied the “stigma plus” test, in which “governmental defamation,
coupled with an alteration in legal status, violates a liberty interest that triggers procedural due
process protection.”86 The Tenth Circuit found that the defendant made a false statement about
81
See Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1503 (10th Cir.1984) (“[I]ntragovernment dissemination, by itself, falls short of the Supreme Court’s notion of publication: ‘to be made public’ ”).
82
McDonald, 769 F.3d at 1213.
83
Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011); see also Bjorklund, 467 F. App’x at 767-70; Gwinn v.
Awmiller, 354 F.3d 1211, 1221-24 (10th Cir. 2004).
84
662 F.3d at 1157.
85
Id.
86
Id. at 1167.
-26-
the plaintiff by wrongly directing him to register in the sex offender probation unit and directing
him to register as a sex offender, and that these actions damaged the plaintiff’s reputation.87 The
Tenth Circuit also found that the defendant’s actions altered the plaintiff’s legal status because the
sex offender registration carried steep penalties for noncompliance and placement on the sex
offender unit limited Brown’s employment and residence options.88 Because the plaintiff was
given no process before being placed in the sex offender probation unit and directed to register as
a sex offender, the Tenth Circuit concluded that the plaintiff did not receive constitutionally
required due process.89
Brown establishes that governmental defamation coupled with a deprivation of a liberty
interest entitles a person to procedural due process protections.90 Like the plaintiff in Brown,
Odhuno has shown that Defendants’ conduct damaged his reputation and altered his legal status.
He was terminated from employment and cannot obtain future employment because he is required
to respond affirmatively to questions regarding whether he has been accused of abuse. Brown may
not be completely analogous to this case, but in the words of the Brown court, “[r]equiring a right
to be clearly established is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful, but it is to say that in light
of pre-existing law the unlawfulness must be apparent.”91 In light of the Tenth Circuit’s decision
in Brown, the unlawfulness of Rose and Sunderraj’s conduct is apparent.
87
Id. at 1169.
88
Id.
89
Id. at 1169-70.
90
Id.
91
Id. at 1171. (internal quotation marks omitted).
-27-
This is especially true when Brown is read in conjunction with Bjorklund v. Miller. The
plaintiff in Bjorklund was the chief executive officer of the county public facilities authority.92
The plaintiff’s employment was terminated and the defendant, who was a member of the board
that terminated the plaintiff, made false and defamatory statements relating to his termination in
two newspaper articles.93 The plaintiff then brought a § 1983 claim alleging that the defendant
deprived him a liberty interest in his good name without due process.94 The district court denied
the defendant’s motion for summary judgment on the basis of qualified immunity.
The Tenth Circuit began is analysis by restating the four elements necessary to bring a
“stigma-plus” claim in the context of employment termination. Having found that these elements
were satisfied, the court concluded that the plaintiff was deprived of a name-clearing hearing.95
Therefore, the defendant was not entitled to qualified immunity.96
Defendants argue that Bjorklund is distinguishable from this case because the plaintiff in
Bjorklund was terminated by a public entity while Odhuno was terminated by a private entity. It
is true that Odhuno was not employed by a government entity and that other Tenth Circuit cases
applying this doctrine have done so in the context of discharge from government jobs. But, the
situation in this case is no different from Bjorklund. Odhuno has come forward with evidence
showing that Defendants made false and stigmatizing statements to exclude him from his current
and future employment. Any infringement of Odhuno’s liberty is the same as if he lost a
92
Bjorklund, 467 F. App’x at 760.
93
Id. at 761-63.
94
Id.
95
Id. at 768-69.
96
Id. at 770.
-28-
government job.97 Furthermore, it is well established that a private party may be considered a state
actor. Under the state compulsion test, a state may exercise such “coercive power or . . . provide
[] such significant encouragement, either overt or covert, that the [private party’s choice] must in
law be deemed to be that of the State.”98 Here, Odhuno has come forward with evidence that when
viewed in the light most favorable to him show that Rose and Sunderraj compelled Avita to
terminate him to abate immediate jeopardy. Therefore, Bjorklund provides further support that the
law was clearly established at the time of Defendants’ conduct in this case.
Finally, one other Tenth Circuit decision generally supports Odhuno’s claim that
Defendants are not entitled to qualified immunity. In Snell v. Tunnell,99 the Tenth Circuit affirmed
the denial of a qualified immunity as to three defendant child abuse investigators.100 The
defendants knowingly falsified allegations of child pornography and prostitution against the
plaintiffs, who were operators of a children’s shelter, to obtain a court order to remove seven
children from the plaintiff’s home.101 The Tenth Circuit affirmed the denial of qualified immunity
holding that as it related to a child abuse investigation, “a reasonable public official would have
known that using known false information to secure an order to justify entry and search of a private
home would violate the Fourth Amendment’s proscription on unreasonable searches and
seizures.”102
97
See Wroblewski v. City of Washburn, 965 F.2d 452, 456 (7th Cir. 1992) (suggesting that the loss of private
employment could be the “plus” in a stigma plus case).
98
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted).
99
920 F.2d 673 (10th Cir. 1990).
100
Id. at 676.
101
Id. at 677-86.
102
Id. at 700.
-29-
The Tenth Circuit analyzed the facts of Snell in the context of a Fourth Amendment claim,
and not a Fourteenth Amendment claim. Under Snell, however, no reasonable official in Sunderraj
and Rose’s positions could believe that conveying unsubstantiated information to Avita to compel
Odhuno’s termination was not a violation of his constitutional rights.103 And when read in
conjunction with Brown and Bjorklund, “the violative nature of [Defendants’] conduct is clearly
established.”104 Therefore, Defendants Rose and Sunderraj are not entitled to qualified immunity
on Odhuno’s § 1983 and Bivens claims for deprivation of a liberty interest in his good name and
reputation without due process of law.
3.
Equal Protection
Odhuno claims that Defendants Rose and Sunderraj discriminated against him based on his
race, national origin, and/or gender in violation of his Fourteenth Amendment right to equal
protection. “The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.”105 “The ultimate
issue in any case alleging a violation of the Equal Protection Clause is whether plaintiffs can prove
intentional discrimination. . . . Plaintiffs must show that they were treated differently because of
their membership in a protected class, and not for some other reason.”106 Furthermore, to show a
103
See Poore v. Glanz, 724 Fed. App’x 635, 643 (10th Cir. 2018) (“[T]he qualified immunity analysis is not
‘a scavenger hunt for prior cases with precisely the same facts.’ ” (citation omitted)).
104
Ziglar, 137 S. Ct. at 1866 (internal quotations omitted).
105
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202,
216 (1982)).
106
Redpath v. City of Overland Park, 857 F. Supp. 1448, 1458 (D. Kan. 1994) (internal citations omitted).
-30-
violation of the Equal Protection clause, Odhuno must establish “proof of racially discriminatory
intent or purpose.”107
Odhuno has not come forward with any evidence or argument in response to Sunderraj’s
summary judgment motion showing that she violated his right to equal protection or that her
actions were motivated by racial animus toward him.108 Therefore, Odhuno has not met his burden
at this stage of the litigation, and Sunderraj is entitled to dismissal of Odhuno’s § 1983 and Bivens
claims for violation of his right to equal protection.
Odhuno has, however, produced evidence showing that Rose treated Odhuno differently
than other alleged perpetrators and that her actions were motivated by racial animus. After the
immediate jeopardy announcement, Underwood—Avita’s administrator—proposed to Rose that
Avita suspend all black male nurses. Rose responded by asking “just nurses?” indicating that
Underwood should suspend all black male employees. As a result, Avita suspended all black male
employees, including a cook, regardless of whether they ever provided any care to the resident.
When this evidence is viewed in the light most favorable to Odhuno, it shows racially
discriminatory intent or purpose towards black individuals. The Court doubts that if the resident
would have described her alleged abuser as a white nurse, Rose would have insisted that Avita
suspend all Caucasian employees. Therefore, Odhuno has shown a violation of his right to equal
protection under the Fourteenth Amendment.
107
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)
108
Odhuno cannot rely on Rose’s actions to defeat Sunderraj’s assertion of qualified immunity on this claim.
“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
-31-
Turning to whether the law was clearly established at the time of Rose’s alleged violation,
the Court recognizes that Odhuno has not come forward with a Tenth Circuit case directly on point.
The law, however, does not require that “the very action in question has previously been held
unlawful.”109 A government official “might lose qualified immunity even if there is no reported
case directly on point.”110 Here, both the Supreme Court and Tenth Circuit have stated that the
Equal Protection Clause of the Fourteenth Amendment is violated when the plaintiff comes
forward with proof of racially discriminatory intent or purpose.111
Under this law, the
unlawfulness of Rose’s conduct would have been apparent. Therefore, the Court declines to grant
Rose qualified immunity on this claim.
4.
Defendants’ Alleged Violation of Medicare Statute, Federal Regulations, and KDADS
Protocol
Odhuno argues that Rose and Sunderraj did not comply with the due process safeguards
built into the federal Medicare statute governing nursing facilities, the Medicare regulations, and
KDADS protocol. The Medicare statute imposes requirements on the State when nurse aides have
been accused of neglect, abuse or misappropriation of a resident.
Specifically, 42 U.S.C.
§ 1396r(g)(1)(C) states:
The State shall provide, through the agency responsible for surveys and
certification of nursing facilities under this subsection, for a process for the receipt
and timely review and investigation of allegations of neglect and abuse and
misappropriation of resident property by a nurse aide of a resident . . . .The State
shall, after notice to the individual involved and a reasonable opportunity for a
hearing for the individual to rebut allegations, make a finding as to the accuracy of
the allegations. If the State finds that a nurse aide has neglected or abused a resident
109
Ziglar, 137 S. Ct. 1866 (internal quotation marks omitted).
110
Id. at 1867 (internal quotation marks omitted).
111
Village of Arlington Heights, 429 U.S. at 265; Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir.
1988).
-32-
or misappropriated resident property in a facility, the State shall notify the nurse
aide and the registry of such finding.
The Court is puzzled at this stage of litigation as to whether Odhuno is asserting a claim
for violation of 42 U.S.C. §1396r(g)(1)(C) under § 1983. Odhuno does not cite this statute
anywhere in the Amended Complaint. Indeed, the first time he asserts that Defendants violated it
is in response to Defendants’ Motion for Summary Judgment. That response simply argues that
Defendants’ violated the statute. It does not explain how Defendants’ alleged violation affects
their qualified immunity defense or any other cause of action in the Amended Complaint.
A plaintiff may obtain relief under § 1983 for violation of a federal statutory right, but to
do so, the plaintiff must show that the statute confers upon that individual a federal right.112 It is
not sufficient to show that the defendant simply violated the statute.113 Here, the parties only
briefly touched on whether Defendants violated 42 U.S.C. § 1396r(g)(1)(C). They have not
addressed whether Odhuno asserted a claim for violation of this statute in his Amended Complaint.
Nor have they addressed the relevant legal arguments governing whether the statute confers a legal
right upon CNAs so that they may bring a claim under § 1983.114 The Court is not going to
112
Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citation omitted).
113
See id. The Supreme Court articulated a three-part test in Blessing for determining whether a statute
confers an individual federal right. “First, Congress must have intended that the provision in question benefit the
plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and
amorphous’ that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a
binding obligation on the States.” 520 U.S. at 340-41 (internal citations omitted).
114
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 279 (2002). The Court notes that while Odhuno alleges
Defendants violated the federal Medicare regulations governing nursing facilities, he cannot bring a claim for violation
of these regulations under § 1983. See Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Language in a regulation
may invoke a private right of action that Congress through statutory text created, but it may not create a right that
Congress has not.”).
-33-
unilaterally engage in this analysis and therefore makes no finding as to whether Defendants
violated 42 U.S.C. § 1396r(g)(1)(C).
C.
Official Capacity Claim
Defendant Keck contends that Odhuno’s official capacity claim seeking equitable relief
against him as Secretary of KDADS is barred by sovereign immunity. The Eleventh Amendment
states: “The Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” This amendment has been broadly interpreted,
and among other things, prohibits suits brought by individuals against state officials acting in their
official capacities.115 This prohibition does not apply, however, if the state waives sovereign
immunity, if Congress validly abrogates the state’s immunity, or if the suit falls within the Ex parte
Young doctrine.116
Odhuno relies on the Ex parte Young doctrine in this case. Under that doctrine, the
Eleventh Amendment does not bar suit against state officials in their official capacities if it seeks
prospective relief for the officials’ ongoing violation of federal law.117 In analyzing whether this
exception applies, the Court “need only conduct this ‘straightforward inquiry.’ ”118 Thus, the
analysis of whether the doctrine applies does not involve an analysis of the merits of a claim.119
115
Harris v. Owens, 264 F.3d 1282, 1289-90 (10th Cir. 2001).
116
Id. at 1290.
117
Id.; see also Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012).
118
Columbian Fin. Corp. v. Stork, 702 F. App’x 717, 720 (10th Cir. 2017) (quoting Muscogee, 669 F.3d at
1167).
119
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 646 (2002) (“[T]he inquiry into whether
suit lies under Ex parte Young does not include an analysis of the merits of the claim.”).
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Keck argues that Ex parte Young does not apply because Ohduno’s requested relief stems
from past harm. However, courts have uniformly recognized that injunctive relief in the form of
a court order to expunge or remove files or false information falls within the scope of Ex parte
Young.120 In this case, Ohduno has alleged an ongoing violation of his constitutional rights and
seeks prospective injunctive relief. He asserts that KDADS has kept and maintained official
records indicating that he abused the resident and has made no effort to correct or expunge those
official reports to make it clear that no evidence of actual abuse was ever found by KDADS
investigators. Thus, he is seeking injunctive relief in the form of a court order “that a statement
be placed on all KDADS databases indicating plaintiff has been totally exonerated from any
alleged wrongdoing during his Avita employment, as well as for KDADS to cease disseminating
false information regarding plaintiff to his potential employers and medical field educators.” This
proposed injunctive relief is not limited to past violations. It would also prevent future harm to
Odhuno. Therefore, it cannot be characterized solely as retroactive injunctive relief and is not
barred by the Eleventh Amendment.
Keck also argues that Ex parte Young does not apply because there is no evidence to
support Odhuno’s claim that KDADS substantiated that he abused a resident of Avita and that
KDADS has no file or record which includes any findings regarding the Avita’s resident’s
allegations. According to Keck, the complaint survey file and the public Statement of Deficiencies
are CMS files that KDADS does not have the authority to alter, modify, or destroy. These
arguments, however, are not persuasive. The issues of whether KDADS substantiated that Odhuno
120
Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992);
Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986); Donald M v. Matavia, 668 F. Supp. 714, 714-15 (D. Mass. 1987).
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abused a resident and whether the complaint survey file and Statement of Deficiencies indicate
that Odhuno committed the alleged abuse involve an analysis of the merits of Odhuno’s claims.
Thus, they are irrelevant to whether the Ex parte Young doctrine applies. Furthermore, to the
extent KDADS claims to have no control over these documents because they belong to CMS, Keck
has offered no evidence in support of this assertion, and the Court has no way of knowing whether
it is true or not. Therefore, the Court concludes that Odhuno’s official capacity claim against Keck
is not barred by Eleventh Amendment immunity.
D.
Odhuno’s State Law Claims
Defendants request that the Court decline to exercise supplemental jurisdiction over
Odhuno’s tort of outrage claim brought under Kansas law. Under 28 U.S.C. § 1367(c), a district
court may decline to exercise supplemental jurisdiction over a claim if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
Although Odhuno has not opposed the § 1983 and Bivens claims against Defendants Fortney,
Schiffelbein, and Banuelos, these claims are still pending against Defendants Rose and Sunderraj
because the Court denied them qualified immunity. In addition, there are federal claims pending
against Avita and Axiom, as well as the state tort of outrage claim. Therefore, it is in the interest
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of judicial economy, fairness, and convenience for the Court to exercise supplemental jurisdiction
over the tort claim, and the Court will continue to do so.121
IV.
Conclusion
After carefully reviewing the evidence and case law, the Court concludes that Rose and
Sunderraj are not entitled to qualified immunity therefore denies Defendants’ Motion for Summary
Judgment as to these Defendants. Because Odhuno chose not to oppose Defendants’ Motion for
Summary Judgment as to Shiffelbein, Fortney, and Banuelos, the Court grants summary judgment
to these Defendants on Odhuno’s § 1983 and Bivens claims. Additionally, the Court concludes
that Defendant Keck is not entitled to sovereign immunity and therefore denies his motion for
summary judgment. The Court will continue to exercise supplemental jurisdiction over Odhuno’s
state law tort claim.
IT IS THEREFORE ORDERED that KDADS Defendants Motion for Summary
Judgment (Doc. 105) is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
Dated this 14th day of December, 2018.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
121
See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988) (stating that district courts should “deal
with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness,
and comity which underlie the pendent jurisdiction doctrine”).
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