Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Turner v. Lickteig

United States District Court, D. Kansas

September 6, 2017

BARRY D. TURNER, Plaintiff,
v.
THEODORE J. LICKTEIG, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Plaintiff Barry Turner filed this action against the attorney that represented him in an unsuccessful suit claiming discrimination under the Americans with Disabilities Act (ADA). The underlying suit claimed that plaintiff should have been granted accommodations related to his dyslexia when he took the Kansas State Board of Nursing's licensing exam, the NCLEX-RN. Judge Vratil granted motions to dismiss the case. See Turner v. Nat'l. Council of State Boards. of Nursing, Inc., et al., No. 11-cv-2059-KHV (D. Kan.). Plaintiff claims that the attorney, defendant Theodore Lickteig, is liable for legal malpractice, breach of contract, and negligent misrepresentation in connection with his representation in the suit. The matter is now before the court on Lickteig's motion for judgment on the pleadings. Dkt. 15. For the reasons stated herein, Lickteig's motion is granted in part and denied in part.

         I. Summary of Complaint.

         Plaintiff has had dyslexia since early childhood. The condition affects his ability to read and his reading rate. Throughout his academic career plaintiff has requested and received accommodations when taking exams, including receiving extra time, having private exam rooms, and having a proctor read test questions when necessary. In January of 2007, plaintiff received a bachelor's degree in nursing from Bethel College in Newton, Kansas, earning a 3.5 grade point average (an A average).

         After graduating, plaintiff sought to obtain his national nursing license. The only way to do so is by taking the NCLEX-RN Computerized Adaptive Test (CAT), which was developed by the National Council for State Boards of Nursing, Inc. (NCSBN), and which is distributed by the Kansas State Board of Nursing (KSBN) to test candidates for national licensure in Kansas. The KSBN controls the issuance of nursing licenses in Kansas and requires passage of the NCLEX-RN for a license.

         In 2007, plaintiff applied in Nebraska to take the NCLEX-RN and requested accommodations from the Nebraska board due to his dyslexia and test-taking anxiety. The request was denied. Plaintiff took the NCLEX-RN three times in Nebraska in 2007 without accommodation and failed each time.

         As an adaptive test, the NCLEX-RN changes the type and number of questions presented depending upon a candidate's initial answers. It is designed to require the test-taker to answer between 75 and 265 questions. According to the complaint, “[c]andidates that do poorly on the initial ten questions can fail the entire examination because of the test's dependence on the candidate's initial responses.” Plaintiff alleges that the CAT exam poses significant hurdles for persons with dyslexia, because “[w]ith test anxiety being higher at the beginning of a test, it is more likely that a dyslexic will provide a greater percentage of incorrect answers in the early stages of the exam. Because of this, the dyslexic test-taker is not able to obtain a passing score because he/she is not given a sufficient number of questions later in the exam to recover from earlier incorrect answers.”

         In April 2008, plaintiff contacted the KSBN and spoke with Gary Taylor about accommodations for his disability. Taylor allegedly promised to provide the requested accommodations if plaintiff submitted certain materials and he told plaintiff to request the accommodations on the test application form. Taylor allegedly said he would contact plaintiff when he needed the materials. Plaintiff alleges that although federal law requires the forms to contain a place to request accommodations, the form he filled out in November 2008 (to take the exam in May 2009) had no such space or information. When plaintiff contacted Taylor in February 2009, Taylor said that if plaintiff passed the test with the requested accommodations, his license would be restricted. In March 2009, plaintiff contacted the KSBN and was told that Taylor no longer worked there. According to the complaint, the KSBN said no accommodations could be provided and no alternative format existed for candidates with disabilities.

         Plaintiff took the NCLEX-RN in May 2009 but failed the exam because his computer prematurely shut down at question 57. This occurred even though each exam is designed to require a test-taker to answer at least 75 questions regardless of performance. Plaintiff alleges that when the KSBN reported his test results, it inaccurately reported he had answered 84 questions. Plaintiff contacted the KSBN and the NCSBN but was told there was no point in appealing because no test result had ever been changed.

         Plaintiff alleges that academic research has revealed significant flaws with the CAT format “that relate to those who suffer from test-taking anxiety.” In October 2009 plaintiff was diagnosed with test anxiety due to his dyslexia and a neuropsychologist opined that he needed an alternative testing format because his condition prevented him from being able to negotiate the CAT format.

         Prior lawsuit. In 2010, plaintiff retained defendant Lickteig to file a complaint with the KSBN and NCSBN about the discriminatory practices and effects surrounding the NCLEX-RN. On January 31, 2011, Lickteig filed suit on plaintiff's behalf against the NCSBN, the KSBN, and several individuals employed by the KSBN, in Turner v. Natl. Council of State Boards of Nursing, Inc., No. 11-cv-2059-KHV. Lickteig asserted seven ADA claims on plaintiff's behalf against the KSBN and its employees (referred to as the State of Kansas defendants) in their official and individual capacities. The complaint sought damages of more than $75, 000 and unspecified declaratory and injunctive relief. The claims included: failure to provide a location on the test application to request accommodations (Count I); denying reasonable accommodations to a disabled person (Counts II and III); threatening a license restriction if plaintiff sought accommodations (Counts IV and V); failure to provide an appeal procedure for test-takers (Count VI); and failure to provide an alternative test format (Count VII). Plaintiff asserted claims against the NCSBN only in Counts VI and VII and only sought declaratory and injunctive relief on those counts. Lickteig filed an amended complaint adding two KSBN employees, including Taylor, on September 2, 2011. See Case No. 11-cv-2059-KHV, Dkt. 24.

         The defendants filed a motion to dismiss the underlying amended complaint, which was granted by Judge Vratil on April 24, 2010. Lickteig allegedly told plaintiff he had a good chance of winning on appeal and advised him to appeal, which he did, but the Tenth Circuit Court of Appeals affirmed the dismissal on April 2, 2014, and the U.S. Supreme Court denied a petition for certiorari.

         Plaintiff alleges among other things that Lickteig “knew and was in possession of indisputable factual information to prove the KSBN and NCSBN were systematically discriminating against [plaintiff] … on a prospective and on-going basis, ” but he failed to include this in the complaint, which “caused or contributed to cause the Lawsuit to be dismissed.” Dkt. 1 at 16. He also alleges that Lickteig “knew or should have known how to draft [plaintiff's] complaint … to assert claims that would have prevented” dismissal, including by stating the elements of a discrimination claim under the ADA; by alleging constitutional claims that would have precluded the defendants from successfully claiming Eleventh Amendment immunity; and by failing to allege various other facts or elements that would have prevented dismissal of the lawsuit.

         II. Standards Governing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.