United States District Court, D. Kansas
FLOYD E. MCNEAL, Plaintiff,
CORRIE L. WRIGHT, and VALEO BEHAVIORAL HEALTH CARE, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
30, 2017, the court granted defendant Valeo Behavioral Health
Care's (“Valeo”) motion to dismiss
plaintiff's ADA claims. Doc. 16. In its Order dismissing
those claims, the court noted that Valeo had not moved to
dismiss plaintiff's equal protection and Homeless
Assistance Act, 42 U.S.C. § 11301 et seq.,
claims, and so those claims remained pending against Valeo.
Id. at 4. Valeo disagrees with the court's
evaluation of plaintiff's Complaint. So, on June 13,
2017, Valeo filed a document containing two motions: (1) a
motion asking the court to reconsider its May 30, 2017 Order
and (2) a motion to dismiss plaintiff's remaining federal
claims if the court denies its motion to reconsider. Doc. 18.
did not respond to Valeo's motions, and the time for
doing so has passed. See D. Kan. Rule 6.1(d)(2).
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 also 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 D. Kan. Rule
7.4(b), but also considering motion to dismiss on its
merits). For reasons explained below, the court denies
Valeo's motion to reconsider but grants Valeo's
motion to dismiss plaintiff's equal protection and
Homeless Assistance Act claims.
court has addressed plaintiff's allegations in this case
before. Docs. 16, 19. The court thus recites only those
allegations necessary to decide the current motions. And,
because Valeo brings one of its motions under Federal Rule of
Civil Procedure 12(b)(6), the court has taken the following
facts from plaintiff's Complaint and accepts them as
true. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th
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 he thus 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.
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. All of these similarly situated
people were women.
filed his Complaint in our court on January 25, 2017. The
Complaint asserts claims under 42 U.S.C. § 1983 against
all three defendants-Terica Henry,  Corrie Wright, and Valeo-for
gender and disability discrimination. The Complaint also
mentions § 11301 of the Homeless Assistance Act, but
does not explicitly connect that statute to any defendant.
And finally, the Complaint asserted ADA claims against Valeo.
The court dismissed those claims on May 30, 2017. Doc. 16.
I. Motion to Reconsider
Valeo's motion to reconsider never identifies the legal
authority it relies on, the court assumes that the motion
relies on D. Kan. Rule 7.3(a). D. Kan. Rule 7.3(a) provides
that “[p]arties seeking reconsideration of dispositive
orders or judgments must file a motion pursuant to”
Federal Rules of Civil Procedure 59(e) or 60. Rules 59(e) and
60 apply only after a court enters judgment. But not all
dispositive orders require the court to enter judgment. So,
“[n]either the Federal Rules of Civil Procedure nor
this court's local rules recognize a motion for
reconsideration when it contemplates a dispositive
order” before judgment is entered, which is exactly
what Valeo's motion to reconsider contemplates.
Ferluga v. Eickhoff, 236 F.R.D. 546, 548-49 (D. Kan.
2006) (citing Nyhard v. U.A.W. Int'l, 174
F.Supp.2d 1214, 1216 (D. Kan. 2001)). Our court has faced
this conundrum before. In such situations, the court has
relied on its “discretion to revise an interlocutory
order at any time prior to the entry of final judgment”
and has treated the motion as one for reconsideration.
Id. at 549 (citations omitted). In doing so, the
court applies “the legal standards applicable to a Rule
59(e) motion to alter or amend and/or a motion to reconsider
a non-dispositive order under D. Kan. Rule 7.3, which are
essentially identical.” Id.
Rule 7.3(b) requires a movant to base its motion for
reconsideration on “(1) an intervening change in
controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error or prevent manifest
injustice.” A motion to reconsider “is not [an]
appropriate [device] to revisit issues already addressed or
advance arguments that could have been raised in prior
briefing.” Ferluga, 236 F.R.D. at 549 (citing
Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000)). So, “a motion for reconsideration is
appropriate [only] where the court has misapprehended the
facts, a party's position, or the controlling law.”
Id. (citing Servants of Paraclete, 204 F.3d
at 1012). “The decision whether to grant a motion to
reconsider is committed to the district court's
discretion.” Coffeyville Res. Ref. & Mktg., LLC
v. Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261, 1264
(D. Kan. 2010) (citing In re Motor Fuel Temperature Sales
Practices Litig., 707 F.Supp.2d 1145, 1166 (D. Kan.
2010), appeal dismissed by 641 F.3d 470 (10th Cir.
2011)); accord Brumark Corp. v. Samson Res. Corp.,
57 F.3d 941, 944 (10th Cir. 1995). Here, Valeo contends that
the court committed clear error and so, it contends, the
court must reconsider its May 30, 2016 Order. Doc. 18 at 1.
Valeo relies on no other D. Kan. Rule 7.3(b) factor.
May 30, 2016 Order, the court concluded that plaintiff's
Complaint asserted three types of claims against Valeo: (1)
equal protection claims under § 1983 asserting gender
and disability discrimination; (2) claims under the ADA; and
(3) a claim under § 11301 of the Homeless Assistance
Act. Doc. 16 at 4. Valeo contends that plaintiff asserted
only an ADA claim against it and that the court's
construction of the Complaint was clear error. Valeo relies
on two arguments to support this contention.
Valeo argues that the Complaint contains “no facts or
allegations pertaining to Valeo to bring it within the scope
of any of the jurisdictional statutes
alleged”-i.e., 42 U.S.C. § 1983 or 42
U.S.C. § 11301. Doc. 18 at 2. And second, Valeo argues
that the Complaint's “actual factual and legal
basis for relief alleged in the Statement of Claim is limited
to claiming ‘Valeo has violated my rights under the
American with Disabilities Act for not accommodating me and
treating me differently than the other women who are disabled
and making a diagnosis ...