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McNeal v. Wright

United States District Court, D. Kansas

November 9, 2018

FLOYD E. MCNEAL, Plaintiff,
v.
CORRIE L. WRIGHT, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This matter is before the court on defendant Corrie L. Wright's Amended Motion for Summary Judgment (Doc. 34). Defendant filed her amended motion on June 19, 2018. The same day, the court required defendant, under D. Kan. Rule 56.1(f), to “serve and file as a separate document, together with the papers in support of the motion, [a] ‘Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment' with the full texts of Fed.R.Civ.P. 56 and D. Kan. Rule 56.1 attached.”[1] Defendant electronically served and filed this notice on June 22, 2018 (Doc. 37). Once served, pro se plaintiff[2] Floyd E. McNeal had 21 days to respond to defendant's dispositive motion. See D. Kan. Rule 6.1(d)(2). On July 23, 2018, the court issued a Notice and Order to Show Cause why it should not consider and rule on defendant's motion as an uncontested one under D. Kan. Rule 7.4(b) (Doc. 38). The court required plaintiff to respond on or before August 10, 2018. The record reflects that plaintiff never responded to defendant's motion or the court's order.

         Because plaintiff has not responded to defendant's summary judgment motion, the court may “consider and decide the motion as an uncontested motion.” See D. Kan. Rule 7.4(b). “Ordinarily, the court will grant the motion without further notice.” Id. But a party's failure to respond to a summary judgment motion-alone-is not a sufficient basis on which to enter judgment. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Instead, the court must determine whether judgment for the moving party is appropriate under Fed.R.Civ.P. 56. Id. Therefore, the court considers the merits of defendant's summary judgment motion below.

         But because plaintiff failed to file a response, he “waives the right to respond or to controvert the facts asserted in [defendant's] summary judgment motion.” Reed, 312 F.3d at 1195. Thus, the court accepts as true all material facts asserted and properly supported in defendant's summary judgment motion, as identified in the analysis below. Id.

         For reasons explained below, the court grants defendant's motion for summary judgment.

         I. Uncontroverted Facts

         On January 25, 2017, plaintiff filed a Complaint asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); 42 U.S.C. § 1983; section 11301 of the Homeless Assistance Act, 42 U.S.C. § 11301 et seq.; and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Doc. 1. Plaintiff asserted these claims against defendants Terica Henry, Corrie L. Wright, and Valeo Behavioral Health Care (“Valeo”).

         The following facts either have been stipulated by the parties in the Pretrial Order (Doc. 30) or are uncontroverted.

         Plaintiff alleges that he has experienced “severe persistent mental health problem[s]” his whole life. Doc. 1 at 4; see also Doc. 34 at 1. He contends that defendant denied him service when he tried to apply for two programs, Rapid Re-Housing and Shelter Plus Care. The City of Topeka, Kansas, administers both programs. Doc. 34 at 3 (citing Docs. 34-6, 34-12).

         The parties have stipulated to the following facts. Defendant is the Director of Housing Services for the City of Topeka Department of Neighborhood Relations. She wrote a letter to plaintiff dated January 9, 2017, letting him know that his best opportunity to secure housing was through the Shelter Plus Care program. This letter also informed plaintiff that he must meet the qualifications of being homeless and have one of three other disabilities-severe persistent mental illness, chronic substance abuse, or HIV/AIDS-to qualify for the Shelter Plus Care program. The letter notified plaintiff that if he met those qualifications, he would need to see his case manager for an appropriate referral to the program. The letter also provided plaintiff with Valeo's phone number. The letter informed plaintiff that the City of Topeka did not have temporary or immediate housing available, and it referred plaintiff to the Rescue Mission. Plaintiff did not have a referral for Shelter Plus Care during the time period relevant to this case. Doc. 34 at 2-3; Doc. 30 at 2-3.

         Defendant represents in her motion that the City of Topeka Department of Neighborhood Relations administers the Shelter Plus Care program. Doc. 34 at 2 (citing Doc. 34-9). She asserts, “A qualified contracting primary service provider (such as Valeo) must make a determination, and then give a referral to an individual who meets the program requirements of being homeless or suffering from a targeted disability” such as severe persistent mental illness, chronic substance abuse, or HIV/AIDS. Id. at 3 (citing Docs. 34-5, 34-9, & 34-12). Both parties assert that Valeo evaluated plaintiff in January 2017 for severe, persistent mental health problems and homelessness. Id. (citing Docs. 34-3, 34-5); Doc. 1 at 4. The parties also represent that Valeo did not refer plaintiff to the Shelter Plus Care program. Doc. 34 at 3; Doc. 1 at 4. Defendant asserts that plaintiff, because he had never secured a referral from Valeo, did not qualify for the Shelter Plus Care program. Doc. 34 at 3 (citing Docs. 34-2, 34-3, 34-11, & 34-12).

         II. Legal Standard

         The court may consider uncontested summary judgment motions, but it “cannot grant summary judgment unless the moving party has met its initial burden of production under [Federal Rule of Civil Procedure] 56.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003). The movant must show that “no genuine issue of material fact exists and that [she] is entitled to judgment as a matter of law.” Id. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the summary judgment motion is uncontested because the nonmovant has failed to respond within the prescribed time, the non-moving party “waives the right to respond or to controvert the facts asserted in the summary judgment motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). If the facts the movant sets out satisfy the summary judgment burden, the court properly can grant the motion. Id. Conversely, if the movant's facts fail to meet this burden, the court must deny summary judgment “‘even if no opposing evidentiary matter is presented.'” Id. (emphasis omitted) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)).

         The movant must direct the court to “portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). To fulfill this requirement, the moving party need only “point[] out to the court a lack of evidence for the nonmovant on an essential element of the ...


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