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McNeal v. Wright

United States District Court, D. Kansas

August 1, 2017

FLOYD E. MCNEAL, Plaintiff,


          Daniel D. Crabtree United States District Judge

         On May 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.

         Plaintiff 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.


          The 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 Cir. 2014).

         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 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.

         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. All of these similarly situated people were women.

         Plaintiff 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, [1] 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

         Although 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.

         D. Kan. 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.

         In its 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.

         First, 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 ...

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