United States District Court, D. Kansas
MEMORANDUM AND ORDER
A. ROBINSON UNITED STATES DISTRICT JUDGE
is a prisoner at the Lansing Correctional Facility in
Lansing, Kansas. He brings this action under 42 U.S.C. §
1983, alleging due process and equal protection violations by
prison officials associated with his assignment to
administrative segregation in 2015. Before the Court are
Defendants' Motions to Dismiss (Doc. 15, 17) under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Plaintiff has not
responded to the motions, nor to an Order to Show Cause why
these motions should not be granted for failure to respond
(Doc. 19). The motion can therefore be granted for failure to
file a response. The motion can also be granted on the
merits, as described more fully below.
failed to file a response to the motion to dismiss and the
time to do so has expired. Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney
who fails to file a responsive brief or memorandum within the
time specified in D. Kan. Rule 6.1(d) waives the right to
later file such brief or memorandum. If a responsive brief or
memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.
pro se litigant is not excused from complying with
the rules of the court, and is subject to the consequences of
noncompliance. As a result of Plaintiff's failure to
respond, the Court may grant Defendants' motions to
dismiss as uncontested.
Court also finds that the Complaint must be dismissed on the
merits. To the extent Plaintiff alleges official capacity
claims against these Defendants, who are all employees of the
Kansas Department of Corrections, they are barred by Eleventh
Amendment immunity. The individual capacity claims should be
dismissed for failure to state a claim. As to Defendants
Goddard and Reed, Plaintiff fails to allege sufficient facts
that they personally participated in the alleged
constitutional violations. Plaintiff's Fourteenth Amendment
due process claim fails to state a claim for the reasons
identified in Defendants' motions to dismiss: he fails to
sufficiently allege that his confinement in administrative
segregation at Lansing implicates a protected liberty
interest. Plaintiff's Fourteenth Amendment equal
protection claim fails to allege facts identifying other
inmates that are similarly situated and were treated
differently. Moreover, Plaintiff fails to allege facts
giving rise to an inference of disparate treatment. For all
of these reasons, the Court grants Defendants' motions to
dismiss. The official capacity claims are dismissed without
prejudice. The individual capacity claims shall be dismissed
with prejudice as to Defendants Goddard, Martin, Buchanan,
and Reid. They shall be dismissed without prejudice under
Fed.R.Civ.P. 4(m) as to Defendants Klugh and Lucht for
failure to timely serve them with the Summons and
IS THEREFORE ORDERED BY THE COURT that
Defendants' Motions to Dismiss (Doc. 15, 17) are granted.
The official capacity claims are dismissed without prejudice.
The individual capacity claims shall be dismissed with
prejudice as to Defendants Goddard, Martin, Buchanan, and
Reid, and without prejudice as to Defendants Klugh and Lucht.
IS SO ORDERED.
See D. Kan. R. 6.1(d)(2)
(requiring a response to a dispositive motion to be filed
within twenty-one days).
Ogden v. San Juan Cnty., 32
F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (insisting
that pro se litigants follow procedural rules and
citing various cases dismissing pro se cases for
failure to comply with the rules)).
See Hunt v. Colo. Dep't of
Corrs., 271 F. App'x 778, 781 (10th Cir. 2008)
(citing Port Auth. Trans-Hudson Corp. v. Feeney, 495
U.S. 299, 304 (1990)).
See Stewart v. Beach, 701 F.3d
1322, 1328 (10th Cir. 2012) (quoting Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009));
Wilson v. Montano, 715 F.3d 847, 856 (10th Cir.
2013) (quoting Dodds v. ...