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Ellison v. Ladner

United States District Court, D. Kansas

March 20, 2018

TODD ELLISON, Plaintiff,



         This 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 why.[1]

         I. Insufficient Service of Process[2]

         Defendant 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.

         When a 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 . . . .”).

         Here, 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.

         II. Governing Facts

         The 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.

         Defendant 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.

         Before 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.

         Some 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 thereafter.

         Plaintiff 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.

         III. Legal Standard

         On a 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)).

         Although 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)).

         Although 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. 2002)).

         IV. ...

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