United States District Court, D. Kansas
CLARA R. FULLER, Plaintiff,
STATE OF KANSAS, DEPARTMENT OF CHILDREN & FAMILIES, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendants Stephanie
Henderson, Sandra Kimmons, Lewis Kimsey, and Lisa Locke's
Motion to Dismiss (Doc. 100). Pro se plaintiff Clara R. Fuller
has filed a Response (Doc. 104) and a Supplement to her
Response (Doc. 105). And defendants have filed a Reply (Doc.
108). Although plaintiff has invoked 42 U.S.C. § 1983 as
a basis for federal jurisdiction, defendants contend that
plaintiff has failed to identify any substantive federal
right that defendants violated in their individual
capacities. For reasons explained below, the court grants
alleges that defendant, the Kansas Department of Children and
Families (“DCF”), discriminated against her
because of her race, gender, and age. DCF, plaintiff
contends, discriminated through actions taken by four
individual DCF employees: Stephanie Henderson, Lewis Kimsey,
Lisa Locke, and Sandra Kimmons. Plaintiff has sued these four
employees in their official and individual capacities.
Plaintiff had asserted claims against defendants under Title
VII, the Age Discrimination in Employment Act
(“ADEA”), and 42 U.S.C. § 1983.
have filed a slew of Motions to Dismiss in this case. Most
recently, the court decided defendants' fourth Motion to
Dismiss. Doc. 55. In its Order, the court dismissed
plaintiff's ADEA claim against DCF. Doc. 70 at 9.
But, the court concluded, plaintiff had stated facts
sufficient to support a Title VII claim against DCF based on
plaintiff's termination. Id. at 9. Last, the
court noted that plaintiff had invoked 42 U.S.C. § 1983
as a basis for jurisdiction. Id. at 6. But, the
court did not reach the issue whether plaintiff's §
1983 claim should be dismissed. Instead, the court sua sponte
questioned plaintiff's failure to serve the individual
defendants in their individual capacities. Doc. 70 at 10.
Noting that plaintiff had failed to provide relevant
information that the Clerk of the Court needed to prepare
summons for the individual defendants, the court ordered
plaintiff to show cause why it should not dismiss the claims
against the individual defendants for failure to prosecute.
Id. Plaintiff responded to the order to show cause,
and eventually, the DCF employees were served in their
then filed their fifth Motion to Dismiss (Doc. 100). It makes
several arguments. First, defendants contend they have
qualified immunity from plaintiff's § 1983 claim.
Doc. 101 at 5. Second, defendants contend plaintiff fails to
allege a § 1983 claim because plaintiff's Amended
Complaint (1) asserts no underlying constitutional violation
and (2) fails to allege the individual defendants'
personal involvement in the violation. Id. at 6, 11.
assert that the court must address qualified immunity first
because they argue, without citation, qualified immunity
affects the court's subject matter jurisdiction. Doc. 101
at 4 (“DCF employees file this Motion pursuant to Rule
12(b)(1) based on qualified immunity[.]”). The court
may choose between the qualified immunity question or
arguments that plaintiff has failed to state a claim, as both
may be considered under 12(b)(6). Robbins v.
Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)
(considering whether plaintiff's complaint survived
individual defendant's qualified immunity argument raised
in 12(b)(6) motion); see also Charles Alan Wright
& Arthur R. Miller, 5B Federal Practice and Procedure
§ 1350 (3d ed. 2019) (“The defense of qualified or
judicial immunity has also been held to be properly raised
via Rule 12(b)(6) rather than Rule 12(b)(1), although one can
find courts not being too particular about the
distinction.”). The court thus addresses
defendants' argument that plaintiff has alleged no
underlying constitutional violation for her § 1983
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. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). “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)).
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) (internal quotation
Amended Complaint asserts that defendants discriminated
against her in violation of 42 U.S.C. § 1983.
“Section 1983 does not create any substantive rights,
but merely provides relief against those who, acting under
color of law, violate federal rights created
elsewhere.” Reynolds v. Sch. Dist. No. 1, Denver,
Colo., 69 F.3d 1523, 1536 (10th Cir. 1995) (citing
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
For example, in Reynolds, the plaintiff had asserted
that defendants had discriminated against her in violation of
§ 1983. Id. But, the Tenth Circuit explained
that plaintiff had failed “to identify an independently
created right upon which her § 1983 action rests.”
Id. This omission, the Circuit held, was
“fatal to her claim.” Id. So, it
affirmed the dismissal of plaintiff's employment
discrimination claim under § 1983. Id.
with the Circuit's holding in Reynolds, district
courts have dismissed § 1983 actions where the plaintiff
has failed to identify the underlying substantive right.
See Robles v. Amarr Garage Doors, No.
11-2707-JAR-DJW, 2012 WL 2359423, at *8 (D. Kan. June 20,
2012) (“Plaintiff has similarly failed to identify a
federal right of which Defendants deprived him. And thus, the
Court finds that Plaintiff fails to state a claim for relief
under § 1983 as well.”); Stevenson v. Indep.
Sch. Dist. No. I-038 of Garvin Cty., Okla., 393
F.Supp.2d 1148, 1152 (W.D. Okla. 2005) (“The failure to
identify the substantive rights allegedly violated is grounds
for dismissal for failure to state a claim.”). The
court has scrutinized plaintiff's Amended Complaint and
her Response to defendants' motion carefully. Neither
filing identifies the substantive right plaintiff seeks to
vindicate through § 1983.
the court must construe plaintiff's filings liberally, it
declines to read an underlying cause of action into
plaintiff's Amended Complaint. Hall, 935 F.2d at
1110 (concluding that, although the court construes a pro se
plaintiff's filings liberally, the court does not assume
the role of advocate for the plaintiff). ...