United States District Court, D. Kansas
FLOYD E. MCNEAL, Plaintiff,
CORRIE L. WRIGHT, Defendant.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
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.” Defendant
electronically served and filed this notice on June 22, 2018
(Doc. 37). Once served, pro se plaintiff 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.
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.
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.
reasons explained below, the court grants defendant's
motion for summary judgment.
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”).
following facts either have been stipulated by the parties in
the Pretrial Order (Doc. 30) or are uncontroverted.
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.
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.
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).
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)).
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