Cosgrove v. Kan. Dep't of Soc.

• Decision Date: 29 September 2010
• Docket Number: Case No. 07–2125–SAC.
• Citation: 744 F.Supp.2d 1178
• Parties: Charles Patrick COSGROVE, Plaintiff,v.KANSAS DEPARTMENT OF SOCIAL AND REHABILITATIVE (sic) SERVICES, Donna Whiteman, Michael Vanlandingham, Lois Mitchell, Sydney Kraft, Alberta Brumley and Delmar Brumley, Defendants.
• Court: U.S. District Court — District of Kansas

744 F.Supp.2d 1178

Charles Patrick COSGROVE, Plaintiff,

v.KANSAS DEPARTMENT OF SOCIAL AND REHABILITATIVE (sic) SERVICES, Donna Whiteman, Michael Vanlandingham, Lois Mitchell, Sydney Kraft, Alberta Brumley and Delmar Brumley, Defendants.

Case No. 07–2125–SAC.

United States District Court, D. Kansas.

Sept. 29, 2010.

Jean Ann Uvodich, Olathe, KS, for Plaintiff.Lawrence T. Buening, Jr., Carl W. Ossmann, Kansas Department of SRS, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

In this complaint filed under 42 U.S.C. § 1983, plaintiff contends defendants violated his constitutional rights by acts related to his placement in an abusive foster home when he was a child. The case comes before the court on defendants' motions to dismiss the case. Plaintiff opposes the motions.

Background

On November 1, 2004, plaintiff filed suit in federal court against the Kansas Department of Social and Rehabilitation Services and various individuals, alleging defendants violated his constitutional rights by placing him in an abusive foster home (Case no. 04–3398–SAC). This court dismissed that case, finding it to be barred by the applicable statute of limitations. The Tenth Circuit reversed, finding plaintiff's claims of general physical abuse could have encompassed sexual abuse as well, entitling plaintiff to the benefit of the discovery provision in K.S.A. 60–523(a). Accordingly, plaintiff's § 1983 complaint would only be time barred if filed more than three years from the date he discovered or reasonably should have discovered that his injury or illness was caused by childhood sexual abuse, whichever occurred later. Cosgrove v. Kansas Dept. of Social and Rehabilitation Services, 162 Fed.Appx. 823, 827 (10th Cir.2006). On remand, this court permitted plaintiff to file an amended complaint, but plaintiff did not do so. The court then dismissed plaintiff's claims against Delmar and Alberta Brumley without prejudice, and dismissed his claims against all other defendants with prejudice for failure to state a claim on which relief may be granted and because the action sought monetary relief against defendants who were immune from such relief.

Four days after plaintiff filed the federal case noted above, he filed a nearly identical case in Johnson County, Kansas. (Case no. 04CV8393) Defendants moved to dismiss based upon the statute of limitations, and the state court dismissed the case before either this court or the Tenth Circuit had ruled on similar motions in the federal case noted above. The Johnson County district court judge granted defendants' uncontested motions to dismiss, and dismissed plaintiff's action with prejudice finding plaintiff's claims were barred by the applicable statutes of limitations and statute of repose. Although plaintiff filed a notice of appeal from the state court's judgment of dismissal, plaintiff failed to docket the appeal properly so the appeal was dismissed in May of 2005.

The present case (No. 07–2125–SAC), filed by plaintiff in March of 2007, is identical to the previous state case in all material respects, but for its addition of the phrase “sexual abuse” and its addition of the term “individual capacity” to plaintiff's claims against the four SRS employees. Defendants previously filed motions to dismiss, See Dk. 6, 10, which plaintiff opposed, contending the statute of limitations accrued under K.S.A. 60–523 when he learned the abuse had caused his mental illnesses or injuries. On March 19, 2008, 2008 WL 754897, this court granted the motions to dismiss against all defendants, finding plaintiff's claims time-barred. Dk. 34.

The Tenth Circuit reversed the dismissal (Dk. 40), finding that the applicable limitations period accrued three years after plaintiff's discovery of causation of injury, not three years after plaintiff's discovery of his injury. The Tenth Circuit remanded the case, finding it was not clearly time-barred on the face of the complaint. After remand to this court, the defendants filed the motions to dismiss which are now ripe for decision. (Dk. 48, 49, 50).

Motions to Dismiss

The Kansas Department of Social and Rehabilitation Services (SRS),¹ moves the court to dismiss the case on the grounds of failure to state a claim for relief, sovereign immunity, and res judicata. The four individually-named SRS employees move the court to dismiss based on failure to state a claim for relief, sovereign immunity, qualified immunity, and res judicata. The Brumleys base their motion to dismiss only on res judicata and failure to state a claim for relief. None of the defendants raises the defense of the statute of limitations.

Standard

The legal sufficiency of a complaint is a question of law. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.2010). To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiff's “allegations must move from conceivable to plausible.” U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir.2010); Ashcroft v. Iqbal, 556 U.S. ––––, ––––, 129 S.Ct. 1937, 1951–52, 173 L.Ed.2d 868 (2009). ² Under this standard, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis deleted). The court must “accept as true all well-pleaded factual allegations ... and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010). The allegations must be enough that, if assumed to be true, the plaintiff plausibly and not just speculatively has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008). “On account of [plaintiff's] pro se status,³ we liberally construe his filings, but hold him to the same rules of procedure as other litigants.” Davis v. Kansas Dept. of Corrections, 507 F.3d 1246, 1247 n. 1 (10th Cir.2007).

Untimely response by plaintiff

The court first addresses a procedural matter raised by defendants SRS employees who contend that plaintiff failed to file a timely response to the motions to dismiss, that plaintiff failed to show excusable neglect for that failure, and that pursuant to D.Kan.R. 7.4(b), plaintiff waived the right to file a response brief. The relevant rule provides:

Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified ... waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.

Defendants filed their motions to dismiss on September 17 and 18, 2009, and plaintiff had until November 18, 2009 to file his response. Dk. 46. On August 14th, plaintiff noticed the court and the parties of his new address. Also, during a conference call on August 18, 2009, plaintiff provided his new address to the court and counsel. Accordingly, defendants mailed their motions to dismiss to that address, and the motions were not returned to them. Dk. 52.

Plaintiff states that he did not receive any of the motions to dismiss, that he has had problems receiving mail, that he thought a stay was in effect because settlement negotiations were ongoing, and that defendants are aware that he was treated for mental illness. Dk. 55. Defendants SRS employees state that plaintiff's mother did contact them in an effort to seek a resolution to the case in the way of settlement, but all such contacts were after plaintiff's response time had run, i.e., on November 19, 2009, November 24, 2009, and December 1, 2009.

The docket sheet reflects no activity after defendants filed the present motions to dismiss until plaintiff called the court on November 30, 2009, to advise that he had not received copies of the motions to dismiss. On December 1, 2009, approximately two weeks after his response was due, plaintiff filed a motion for an extension of time to respond, stating he would be incarcerated until December 9th, and requesting that documents be sent to him by certified mail at a different address than he had previously given to court and to counsel. The clerk then changed defendant's address on the docket sheet to reflect that new address.

Plaintiff's motion for an extension of time in which to respond to the dispositive motions was filed out of time. The court nonetheless finds excusable neglect in this matter based upon plaintiff's pro se status, his incarceration, release, and subsequent change of address, his allegation that he never received copies of the motions to dismiss, the parties' admission that there were some communications regarding settlement of the matter, and the court's general preference for matters to be decided on their merits rather than on procedural failings. The court thus grants plaintiff's motion for untimely filing of his response brief, but denies plaintiff's request that documents be sent to him by certified mail.

Plaintiff's response states his understanding that res judicata is the sole issue raised in the motions to dismiss. Dk. 55. Plaintiff incorporates his previous brief regarding the issue of res judicata (Dk. 55, Ex. 1), which contends that his prior state court case was not dismissed on the merits but merely on procedural grounds which were not his fault due to his mental condition and his lack of access to the courts. Dk. 55,...