Chubb v. Keck

MICHAEL R. CHUBB, Plaintiff, v. TIM KECK, et al., Defendants.

CASE NO. 17-3220-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

September 23, 2020

MEMORANDUM AND ORDER

This matter is before the Court on a motion to dismiss or for summary judgment filed by Defendants (ECF No. 33). The motion has been fully briefed and is ripe for decision. Defendants' motion is granted for the reasons stated herein.

I. Background

Plaintiff Michael R. Chubb is a person civilly committed under Kansas law to the custody of the Secretary of the Department of Social and Rehabilitative Services in the Sexual Predator Treatment Program (SPTP) and is detained at Larned State Hospital (LSH), Larned, Kansas. Plaintiff proceeds pro se and in forma pauperis. Plaintiff names as defendants Tim Keck, Secretary of the Kansas Department of Aging and Disability Services; Bill Rein, Superintendent of LSH; Michael Dixon, Director of the Sexual Predator Treatment Program (SPTP); Haleigh Bennett, Program Manager; Tony Schwabauer, Chief of Security, LSH; Kevin Stegman, Special Investigator; Gerry Dirks, Special Investigator; Jeff Brown, LSH Chaplain; Heather Keller, SPTP Property Officer; Marshall Newell, SPTP Property Officer; and Christina Rose, SPTP Property Officer.

Plaintiff's amended complaint (ECF No. 16) contains four claims or counts: (1) violation of his right to free exercise of his religion under the First Amendment; (2) unreasonable search and seizure of his room and property; (3) interference with his mail; and (4) seizure and damage to his property.

The Court ordered a Martinez report, which was filed on September 16, 2019. Defendants then filed their motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) or for summary judgment. Plaintiff did not file a response to the Martinez report, but he did file a response to Defendants' motion on May 14, 2020 (ECF No. 41), after requesting and receiving several extensions of time.

II. Standard of Review

The Court must construe pro se filings liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court does not, however, "take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Id. Moreover, "pro se parties [must] follow the same rules of procedure that govern other litigants." Id.

A. Rule 12(b)(6)

A court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonableinferences derived from those facts are viewed in the light most favorable to plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

B. Summary Judgment

Because the Court has considered the Martinez report filed in this case in evaluating Plaintiff's claims, it decides the motion under the request for summary judgment contained therein. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10^th Cir. 2010) (district court's dismissal under Rule 12(b)(6) of a prisoner's complaint filed pro se characterized as "irregular" where court had not limited its review to the complaint).

Summary judgment is appropriate if the pleadings and other materials before the Court show no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248.

On summary judgment, the initial burden is with the movant to point out the portions of the record which show the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10^th Cir. 1992), cert. denied, 506 U.S. 1013 (1992). Instead of disproving a claim or defense, the movant need only show "a lack of evidence" on an essential element. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10^th Cir. 1998). If the movant meets that burden, the non-movant must come forward with specific facts based on admissible evidence from which a rational fact finder could find in the non-movant's favor. Id. The non-movant's "burden to respond arises only if" the movant meets its initial burden ofproduction. Neal v. Lewis, 414 F.3d 1244, 1248 (10^th Cir. 2005). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52.

The Court views all evidence and draws all reasonable inferences in the light most favorable to the party opposing summary judgment. Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1058 (10^th Cir. 2009). However, Plaintiff's pro se status does not exempt him from complying with the essential federal rules of civil procedure, including Rule 56, Birbari v. United States, 2012 WL 2087180 at *3 (10^th Cir. Jun. 11, 2012), or a court's local rules, Calia v. Werholtz, 426 F. Supp. 2d 1210, 1214 (D. Kan. 2006). Plaintiff's response to Defendants' motion (ECF No. 41) is submitted in the form of an affidavit. He states that "[t]his Affidavit is a compilation of all complaints, grievances, and facts that support the allegations in my complaint." ECF No. 41, at 3. In addition to attempting to raise new claims, Plaintiff utterly fails to include a "section containing a statement of material facts as to which the party contends a genuine issue exists." D. Kan. Rule 56.1(b)(1). In fact, he does not specifically state that he disputes any fact contained in Defendants' memorandum in support. Rule 56 requires that each disputed fact be numbered and refer with particularity to the part of the record relied on. It also provides that "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D. Kan. R. 56.1(a). Because Plaintiff has failed to specifically controvert any of the 20 pages of facts properly set forth by Defendants, all of Defendants' facts shall be admitted for purposes of this motion.

III. Analysis

A. Plaintiff's Status

Initially, the Court notes that Plaintiff cites cases in his pleadings discussing the rights of persons who have been involuntarily committed. See, e.g., Youngberg v. Romero, 457 U.S. 307, 321-22 (1982). Plaintiff, as a civil committee under the Kansas Sexually Violent Predators Act (KSVPA), is in a different position than a prisoner or a person who is civilly committed, albeit involuntarily, merely for mental health issues. He has been found to be a sexually violent predator (SVP) from whom society needs to be protected. While SVPs "must be afforded more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish", "SVPs have been civilly committed subsequent to criminal convictions and have been adjudged to pose a danger to the health and safety of others." Hydrick v. Hunter, 500 F.3d 978, 989-90 (9^th Cir. 2007) (quotation omitted). As a result, "the rights of SVPs may not necessarily be coextensive with those of all other civilly detained persons." Id.

B. Qualified Immunity

Defendants have asserted the qualified immunity defense to all of Plaintiff's claims. Qualified immunity protects public officials who are required to exercise their discretion, shielding them from personal liability for civil damages. Apodaca v. Raemisch, 864 F.3d 1071, 1075-76 (10th Cir. 2017) (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). When a defendant asserts a qualified immunity defense, the plaintiff has a "heavy two-part burden" of establishing "(1) that the defendant's action violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant's actions." Grissom v. Roberts, 902 F.3d 1162, 1167 (10th Cir. 2018) (internal quotation marks omitted). Failure to satisfy either prongof this test will result in a grant of qualified immunity to the defendant. Id. In other words, if the right is not clearly established, a court may find qualified immunity without deciding the constitutionality of the conduct. Apodaca, 864 F.3d at 1076 (citing Pearson v. Callahan, 555 U.S. 223, 236-42 (2009)).

Whether a right is "clearly established" is an objective test: "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Brown v. Montoya, 662 F.3d 1152, 1164 (10^th Cir. 2011) (quoting Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010)). "In order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Id.

C. First Amendment Free Exercise Claim

In this count, Plaintiff states he was a member of a Native American religious callout group called Gray Wolf. He claims he was kicked out of Gray Wolf in April, 2018, due to "fear mongering" by an unnamed staff member. Plaintiff alleges Defendant Bennett was angry he was allowed to practice his religion individually after he was kicked out of Gray...