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McNeal v. Henry

United States District Court, D. Kansas

May 30, 2017

FLOYD E. MCNEAL, Plaintiff,


          Daniel D. Crabtree United States District Judge.

         On January 25, 2017, pro se plaintiff Floyd McNeal filed a Complaint, asserting causes of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), [1] 42 U.S.C. § 1983, section 11301 of the Homeless Assistance Act, 42 U.S.C. § 11301 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Doc. 1. Plaintiff asserts these claims against defendants Terica Henry, Corrie Wright, and Valeo Behavioral Health Care (“Valeo”).

         On March 8, 2017, Valeo filed a Motion to Dismiss plaintiff's Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 12. Plaintiff did not respond to this Motion, and the time for doing so has passed. See D. Kan. R. 6.1(d)(2). So, consistent with D. Kan. Rule 7.4(b), the court “will consider and decide the motion as an uncontested motion.” In these circumstances, the court ordinarily “will grant the motion without further notice.” D. Kan. Rule 7.4(b). Although the court could grant Valeo's motion to dismiss under Rule 7.4(b) without further discussion, it rules on the motion based on its merits out of an abundance of caution. E.g., Gee v. Towers, No. 16-2407, 2016 WL 4733854, at *1 (D. Kan. Sept. 12, 2016) (dismissing complaint under Rule 7.4(b), but also considering motion to dismiss on its merits).


         Because Valeo brings this motion under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), these facts are taken from plaintiff's Complaint. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014); Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

         In January 2017, Valeo staff members evaluated plaintiff for homelessness and to determine whether he suffers from a severe and persistent mental health problem. Plaintiff alleges that the Valeo staff member conducting his evaluation “refused to consider [his] complete medical history and [his] input.” Doc. 1 at 4. After the evaluation, the Valeo staff member concluded that he should not be classified as “SPMI, ” which stands for severe and persistent mental illness. Id. Plaintiff alleges that Valeo misdiagnosed him and, as a consequence, he was unable “to receive the help of shelter plus care or rapid rehousing, ” which is “a federally funded program under the continuum of care mandates.” Id.

         Plaintiff alleges that while he was at Valeo for evaluation he saw “other people who were similarly situated to [him] regarding the[ir] disabilities but” were diagnosed as SPMI “and given the full benefits of treatment as well as a referral for housing through the shelter Plus Care program.” Id. Defendant Corrie Wright administered this program for the City of Topeka, Kansas. And, all the similarly situated people plaintiff mentions were women.

         When plaintiff tried to apply for rapid rehousing, Ms. Wright refused him service. Plaintiff alleges that he was “not even allow[ed] to fill out an application” for rapid rehousing. Plaintiff then applied for shelter plus care, but that too was denied. Plaintiff alleges that Ms. Wright “has given housing vouchers to women who are homeless but not disabled and [to] women who are disabled but not homeless but no[t] to [him]” even though he is “similarly situated to these women.” Id. at 5.

         After Ms. Wright denied plaintiff's various applications, he contacted the United States Department of Housing and Urban Development (“HUD”) for assistance. Defendant Terica Henry, a HUD employee, spoke with plaintiff but refused to help him when he explained his plight and told her that he “would like to make a complaint against the [C]ity of Topeka” and Valeo. Id.

         Plaintiff filed his Complaint in this court on January 25, 2017. In his Complaint, plaintiff alleges a plethora of claims against the three defendants named in the Complaint, as well as entities the Complaint does not name as defendants. He alleges that all three defendants-Ms. Henry, Ms. Wright, and Valeo-discriminated against him on the basis of gender and disability, violating his equal protection rights. He alleges that Valeo violated the ADA by not accommodating him and by treating him differently than the women he noticed while there for evaluation. He also alleges that Valeo violated the ADA by “refusing to reassess” him, “making a diagnosis without [him] signing a waiver, ” and because he “should have seen a doctor.” Id. at 6. He alleges that the City of Topeka, Kansas, [2] violated his rights under the First and Fourteenth Amendments “to petition the government for redress and due process and equal protection.” Id. And, plaintiff alleges that HUD violated his Fifth Amendment due process rights as well as his equal protection rights. The Complaint also mentions § 11301 of the Homeless Assistance Act, but does not link that statute to any of the named defendants, or to HUD or the City of Topeka.

         Plaintiff's Complaint seeks the following relief: “a declaratory judgment against all defendants as to all regarding my true diagnosis [and] proper treatment, ” $50, 000 in damages against each defendant in her personal capacity, and “an emergency injunction to rapidly rehouse [him] by law.” Id. at 7.


         Valeo brings its motion to dismiss under Rules 12(b)(1) and 12(b)(6). Valeo first argues that the court must dismiss plaintiff's ADA claim against it under Rule 12(b)(6) for failure to state a claim. Then, Valeo argues that the court must dismiss the rest of plaintiff's claims under Rule 12(b)(1) because plaintiff's “ADA [claim] is the only federal claim alleged against Valeo, ” and so the court lacks subject matter jurisdiction over the rest of plaintiff's Complaint if it dismisses that claim. Doc. 12 at 3. Valeo's Rule 12(b)(1) argument overlooks several claims. Plaintiff alleges three federal claims against Valeo, and no state law claims. Those federal claims are: (1) discrimination prohibited by the ADA; (2) an equal protection clause violation; and (3) that Valeo's actions violated 42 U.S.C. § 11301. So, even if Valeo's Rule 12(b)(6) motion succeeds and the ...

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