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 Treka Henry,  Corrie Wright,
and Valeo Behavioral Health Care (“Valeo”).
11, 2017, Treka Henry filed a Motion to Dismiss
plaintiff's Complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Doc. 13. 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 Ms. Henry's motion to
dismiss under Rule 7.4(b) without further discussion, it also
rules the motion 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).
Ms. Henry brings this motion under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), these facts are taken from
plaintiff's Complaint and accepted as true. 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.
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 plaintiff 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. All
the similarly situated people plaintiff mentions were women.
plaintiff tried to apply for rapid rehousing, Ms. Wright
refused him service. Plaintiff then applied for shelter plus
care, but this application also 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.
Ms. Wright denied plaintiff's various applications, he
contacted the United States Department of Housing and Urban
Development (“HUD”) for assistance. Defendant
Treka 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 our court on January 25, 2017.
Plaintiff's Complaint alleges a plethora of claims
against the three defendants it names, 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.
Henry brings her motion under Rules 12(b)(1) and (b)(6). She
relies on Rule 12(b)(1) to the extent that the court could
construe plaintiff's Complaint to allege claims against
her employer, HUD, or against her in her official capacity.
Doc. 14 at 7. Despite Ms. Henry's thoroughness, the court
construes plaintiff's Complaint as one alleging only
individual capacity, equal protection claims against her.
See Doc. 1 at 2, 6 (stating that plaintiff is suing
Ms. Henry in her personal capacity for gender and disability
discrimination); see also supra note 3. Ms.
Henry's Rule 12(b)(1) motion is moot. The court now turns
to her Rule 12(b)(6) motion under the following legal