United States District Court, D. Kansas
FLOYD E. MCNEAL, Plaintiff,
TERICA HENRY, CORRIE L. WRIGHT, and VALEO BEHAVIORAL HEALTH CARE, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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),  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”).
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
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).
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.”
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
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.
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.
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,  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
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.
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 ...