United States District Court, D. Kansas
BARRY D. TURNER, Plaintiff,
THEODORE J. LICKTEIG, Defendant.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
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.
Summary of Complaint.
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).
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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