United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant Christine M.T.
Ladner's Motion to Dismiss (Doc. 6). For reasons
explained below, the court grants defendant's motion.
After identifying the governing facts, this order explains
Insufficient Service of Process
argues that plaintiff never served her properly. She contends
that plaintiff must serve her by mailing the summons to the
Office of the Attorney General in Topeka. Although she styles
her entire motion as a Rule 12(b)(6) motion to dismiss for
failure to state a claim, the service of process aspect of
her motion is really a Rule 12(b)(5) motion.
plaintiff sues a governmental employee in her official
capacity, he can effect service of process by delivering the
summons and Complaint to the chief executive officer of the
employee's agency, or in some other manner allowed by
state law. Fed.R.Civ.P. 4(j)(2); see also Bernard v. Kan.
Health Policy Auth., No. 09-1247-JTM, 2011 WL 768145, at
*14 (Feb. 28, 2011) (“Fed. R. Civ. P. 4(j)(2) governs
service upon a state officer served [in a suit asserted
against him] in his official capacity.”). When a
plaintiff sues a governmental employee in her individual
capacity, he can effect service by personally serving the
employee. Fulcher v. City of Wichita, 445 F.Supp.2d
1271, 1275 (D. Kan. 2006); see also Fed. R. Civ. P.
4(e)(2)(A) (“[A]n individual . . . may be served in a
judicial district of the United States by . . . delivering a
copy of the summons and of the complaint to the individual
personally . . . .”).
plaintiff has asserted that he is suing defendant only in her
individual capacity. Doc. 13 at 14. Plaintiff thus properly
served defendant because the record shows that plaintiff
personally served her, see Doc. 4 (“Proof of
Service” form) at 1 (reciting that defendant was served
personally on March 31, 2017), and defendant has presented no
evidence to the contrary. Plaintiff thus properly served
defendant with process.
remainder of defendant's motion to dismiss contends that
the Complaint fails to state a claim upon which the court can
grant relief. Because this portion of the motion relies on
Federal Rule of Civil Procedure 12(b)(6), the court must
accept the well-pleaded facts in the Complaint as true.
Brokers' Choice of Am. v. NBC Universal, Inc.,
757 F.3d 1125, 1136 (10th Cir. 2014). It also must construe
those facts in the light most favorable to plaintiff.
Id. The following paragraphs summarize that version
of the facts for purposes of the current motion.
Christine M.T. Ladner is an Assistant Attorney General for
Kansas who handles civil commitment actions under the Kansas
Sexually Violent Predator Act (“KSVPA”). The
KSVPA allows Kansas to commit an individual in a civil
proceeding if the state proves that he is a sexually violent
predator. See Kan. Stat. Ann. § 59-29a07(a).
Todd Ellison, plaintiff, brings this lawsuit in response to
his extended stay in custody at Sedgwick County Adult
Detention Facility while awaiting trial to determine whether
he was a sexually violent predator under the KSVPA.
he was taken into custody under the KSVPA, plaintiff served a
prison sentence for committing a sex crime. On June 1, 2009,
shortly before he was released from prison, Kansas filed a
Petition against plaintiff under the KSVPA. The Complaint
does not specify whether defendant signed this Petition on
Kansas's behalf. Kansas's KSVPA Petition alleged that
the Kansas Department of Corrections had certified that
plaintiff might meet the criteria for civil commitment
established by the KSVPA. As the KSVPA requires, the District
Court of Sedgwick County, Kansas held a probable cause
hearing on June 25, 2009, and found probable cause to hold
plaintiff in custody for the duration of the proceedings. The
Sedgwick County Adult Detention Facility then took plaintiff
into custody. The Sedgwick County District Court initially
set plaintiff's trial date on the KSVPA Petition for
September 21, 2009, but this trial date was continued
multiple times. The plaintiff in this case-the defendant in
the KSVPA case in Sedgwick County-requested some of the
continuances. Other continuances occurred when the case was
reassigned to new judges. The Complaint never alleges that
the defendant in this case requested any of the continuances.
three years later, on June 21, 2012, plaintiff filed three
motions in the Sedgwick County KSVPA proceeding. All three
sought to secure plaintiff's release. The motions argued
that: (1) the KSVPA was facially unconstitutional; (2) the
Kansas Attorney General had changed the KSVPA in a fashion
that made it a criminal statute; and (3) the KSVPA violated
the Due Process Clause. On February 10, 2014, the Sedgwick
County District Court granted the last of the three motions.
The Kansas Supreme Court then affirmed the Sedgwick County
court's decision on December 9, 2016, and the Sedgwick
County Adult Detention Facility released plaintiff shortly
then filed this lawsuit in federal court. He asserts a single
claim against defendant under 42 U.S.C. § 1983. Claiming
defendant has violated his constitutional rights, plaintiff
has sued defendant in her individual capacity only.
motion to dismiss for failure to state a claim, the court
accepts all facts pleaded by the non-moving party as true and
draws any reasonable inferences in favor of the non-moving
party. Brokers' Choice of Am., 757 F.3d at 1136.
“To survive a motion to dismiss [under Rule 12(b)(6)],
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has
a reasonable likelihood of mustering factual support for
these claims.'” Carter v. United
States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007) (emphasis in original)).
this Rule “does not require ‘detailed factual
allegations, '” it demands more than “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court has explained,
simply “will not do.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555). This is so
because the court need not “'accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 557 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
the court typically can only look to the facts pleaded in the
Complaint to decide a motion to dismiss, the court can
“'take judicial notice of its own files and records
. . . .'” Tal v. Hogan, 453 F.3d 1244,
1264 n.24 (10th Cir. 2006) (quoting Van Woudenberg ex
rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000),
abrogated on other grounds by McGregor v. Gibson,
248 F.3d 946, 955 (10th Cir. 2001)). But these documents
“'may only be considered to show their contents,
not to prove the truth of matters asserted
therein.'” Id. (quoting Oxford Asset
Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.