United States District Court, D. Kansas
TONI R. DONAHUE, individual and on behalf of minor child, DCD, Plaintiff,
GOVERNOR SAM BROWNBACK, Defendant.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant Governor Sam
Brownback's Motion to Dismiss (Doc. 12). Pro se plaintiff
Toni R. Donahue filed this action against defendant on behalf
of her disabled son, claiming the Freedom from Unsafe
Seclusion and Restraint Act signed by defendant in 2015 is
unconstitutional. Defendant moved to dismiss this action
claiming he is entitled to immunity under the Eleventh
Amendment to the United States Constitution and because
plaintiff has failed to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. For the reasons set
forth below, defendant's motion is granted.
signed the Freedom from Unsafe Seclusion and Restraint Act,
K.S.A. § 72-6151 et seq., (“the Act”) into
law on May 27, 2015. Plaintiff alleges that because of the
Act, her disabled son served “shock time” in a
5x4 isolation prison cell located in his autism classroom at
Prairie Center Elementary School on at least six occasions
between April 10, 2015 and October 23, 2015. Plaintiff claims
her son suffered from emotional and physical trauma because
of these incidents. Plaintiff blames the school district but
maintains that defendant is ultimately responsible because
the district was acting under the law defendant passed in May
2015. Plaintiff seeks relief against defendant in both his
individual and official capacities for violations of her and
her son's constitutional rights under 42 U.S.C. §
1983, § 504 of the Rehabilitation Act of 1973, and
“IDEA 2004.” She also claims defendant is liable
for failing to train and supervise social workers at the
Department of Children and Families (“DCF”),
failing to implement policy changes at DCF, and failing to
train police officers in local police departments. She seeks
both compensatory and injunctive relief.
has filed multiple lawsuits on the same subject matter. The
present action was filed on January 31, 2018 and defendant
filed his motion to dismiss on July 6, 2018.
moves to dismiss plaintiff's complaint for lack of
subject matter jurisdiction under Rule 12(b)(1) and for
failure to state a claim under Rule 12(b)(6).
the Eleventh Amendment, “an unconsenting State is
immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.”
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). A
party asserting Eleventh Amendment Immunity may move to
dismiss under Rule 12(b)(1) because “Eleventh Amendment
Immunity concerns the subject matter jurisdiction of the
district court.” Ruiz v. McDonnell, 299 F.3d
1173, 1180 (10th Cir. 2002).
court will grant a 12(b)(6) motion to dismiss only when the
factual allegations fail to “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the factual
allegations need not be detailed, the claims must set forth
entitlement to relief “through more than labels,
conclusions and a formulaic recitation of the elements of a
cause of action.” In re Motor Fuel Temperature
Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D.
Kan. 2008). The allegations must contain facts sufficient to
state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as
distinguished from conclusory allegations, must be taken as
true.” Swanson v. Bixler, 750 F.2d 810, 813
(10th Cir. 1984); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The court construes any reasonable
inferences from these facts in favor of the plaintiff.
Tal, 453 F.3d at 1252.
as here, the plaintiff proceeds pro se, the court construes
the pro se filings liberally. Hall v. Doering, 997
F.Supp. 1445, 1451 (D. Kan. 1998) (citing Hughes v.
Rowe, 449 U.S. 5, 9-10 (1980)). A court may not,
however, supply “additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
brings claims against defendant in his official and
individual capacities under 42 U.S.C. § 1983. She also
seeks relief under § 504 of the Rehabilitation Act of
1973 and “IDEA 2004.” The court will address
defendant's alleged grounds for dismissal for each
Official Capacity Claims under § 1983
purpose of § 1983 is “to provide a remedy to
parties deprived of constitutional rights by a state
official's abuse of his position while acting under color
of state law.” Haines v. Fisher, 82 F.3d 1503,
1508 (10th Cir. 1996). Section 1983 imposes liability
“for violations of rights protected by ...