United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
court referred the following case to United States Magistrate
Judge Gwynne E. Birzer, who issued a report and
recommendation, and an order pertaining to plaintiff's
case. Judge Birzer filed the report and recommendation on May
28, 2018, and she recommended that the court dismiss this
case with prejudice under 28 U.S.C. § 1915(e)(2)(iii) as
seeking relief from defendants who are immune from suit.
Judge Birzer also filed an order on May 28, 2018, denying
plaintiff's motion to appoint counsel. Plaintiff timely
filed an objection to Judge Birzer's report and
recommendation and order denying appointment of counsel.
Plaintiff also filed a motion to proceed with trial.
following facts are taken primarily from the documents
attached to plaintiff's complaint. Plaintiff's
complaint contains very few factual allegations, so the court
refers to the exhibits to understand the background of this
case. The facts recited below are generally not critical to
the resolution of this case, and are provided primarily for
context. They should not be construed as judicial findings or
is a resident of Wichita, Kansas. Plaintiff was a licensed
practical or vocational nurse (“L.P.N.”).
Defendants are the Office of Administrative Hearings
(“OAH”) and Sandra L. Sharon, a Presiding Officer
January 2015, plaintiff was employed as a dispensing nurse at
Matrix Center, a methadone clinic for opioid addiction.
During the early morning of January 26, 2015, plaintiff was
reported to have been working at an “extremely slow
pace.” As a result, the owner/manager of the facility,
Steve Kuma, decided to drug test all staff members. Plaintiff
January 29, 2015, plaintiff took a second drug test and
tested positive for methadone and barbiturates. Plaintiff was
prescribed barbiturates, but not methadone. That same day,
several patients of the facility reported that their
prescriptions for methadone were short. It was suspected-but
not confirmed-that plaintiff shorted these patient's
argues she tested positive for methadone because Matrix
employees poisoned her when they bought her lunch on January
22, 2015. After these events, plaintiff's employment with
Matrix was terminated.
plaintiff's termination, these events were reported to
the Kansas State Board of Nursing (“Board”).
After its own investigation, the Board referred plaintiff to
the Kansas Nurse Assistance Program (“KNAP”).
KNAP recommended that plaintiff participate in a one-year
monitoring program, but plaintiff refused. As a result, KNAP
petitioned to revoke plaintiff's license for violating
K.S.A. § 65-1120(a)(7) and K.A.R. § 60-3-10(s).
April 26, 2017, the Board conducted a hearing about this
matter pursuant to K.S.A. § 77-536. OAH appointed Ms.
Sharon to preside over the hearing. Ms. Sharon granted the
Board's petition to revoke plaintiff's license to
practice nursing on May 23, 2017.
this hearing, plaintiff filed multiple petitions, all of
which were denied. Plaintiff may have also attempted to seek
review of the Board's decision from multiple other
jurisdictions. Plaintiff is now before this court, claiming
that OAH and Ms. Sharon denied her due process and equal
protection rights under the Fourteenth Amendment. Plaintiff
also claims emotional distress and defamation of character.
Plaintiff requests $77, 000 and reinstatement of her nursing
Standard of Review
Birzer granted plaintiff's request to proceed in forma
pauperis under 28 U.S.C. § 1915(e)(2), which requires a
court to examine the pleadings for merit when determining
plaintiff's financial ability to pursue the action. The
authority to proceed without payment of fees is not without
limitation. Under 28 U.S.C. § 1915(e)(2)(B), a court
shall dismiss a case at any time if the court determines that
the action (1) is frivolous or malicious; (2) fails to state
a claim on which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief.
Additionally, Fed.R.Civ.P. 12(h)(3) requires the court to
dismiss a case if it lacks subject matter jurisdiction.
plaintiff proceeds pro se, the court liberally construes her
pleadings. Perkins v. Kan. Dep't of Corr'ns,
165 F.3d 803, 806 (10th Cir. 1999). Nevertheless, plaintiff
still bears the burden to allege sufficient facts on which a
recognized legal claim could be based. Id. Moreover,
this court cannot construct arguments, search the record, or
construct legal theories on behalf of plaintiff. Id.
The dismissal of a pro se complaint is proper only when it is
obvious that the plaintiff cannot prevail on the facts ...