Turner v. Nat'l Council of State Boards of Nursing, Inc.
| Decision Date | 25 April 2012 |
| Docket Number | CIVIL ACTION No. 11-2059-KHV |
| Parties | BARRY D. TURNER, II, Plaintiff, v. NATIONAL COUNCIL OF STATE BOARDS OF NURSING, INC., a Pennsylvania Corporation, STATE OF KANSAS by and through KANSAS STATE BOARD OF NURSING, JEANE WALSH, JANET JACOBS, BERNARD BECKER, JANE CONROY, JANICE McCART, KIMBERLY HENSLEY, JUDITH HINE MARY CAROL POMATTO, SERENA STUTZMAN, BRENDA MOFFITT, GARY TAYLOR and MARY BLUBAUGH, Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Barry Turner, II brings suit against the National Council of State Boards of Nursing, Inc., the Kansas State Board of Nursing and numerous Kansas State Board officers, members and employees in their official and individual capacities.1 Plaintiff alleges that defendants discriminated against him on the basis of disability and failed to provide reasonable accommodations regarding application for and administration of the Kansas nursing licensing examination. He seeks damages and injunctive relief under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. Thismatter comes before the Court on Defendant National Council of State Boards Of Nursing, Inc.'s Motion To Dismiss (Doc. #28) filed September 19, 2011, the Motion To Dismiss (Doc. #30) which the State Board and its officers and members filed September 19, 2011, the Motion Of Defendant Blubaugh To Dismiss (Doc. #46) filed November 14, 2011 and the Motion Of Certain Defendants To Quash Untimely Service Of Process (Doc. #47) filed November 14, 2011. For reasons set forth below, the Court finds that the motion to quash should be overruled and that the motions to dismiss should be sustained.2
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible - and not merely conceivable - on its face. I; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing his complaint with enough factual matter to suggest that he is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when he pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffmust show more than a sheer possibility that defendants have acted unlawfully - it is not enough to plead facts that are "merely consistent with" defendants' liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged - but has not "shown" - that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)).
The amended complaint alleges the following facts:
At an early age, Barry D. Turner was diagnosed with dyslexia, a condition that impairs an individual's ability to accurately interpret and organize graphic symbols, including letters. During his education, Turner received a variety of educational services and accommodations for examinations, including extra time, a private room and readers.3 Turner attended the nursing program at Bethel College in North Newton, Kansas. In February of 2007, Turner earned a bachelor's degree in nursing from Bethel College. The Department of Nursing at Bethel found that Turner's dyslexia did not adversely affect his ability to practice nursing if he received reasonable accommodations for tests.
The National Council of State Boards of Nursing, Inc. ("National Council") provides an opportunity for state and territorial boards of nursing to act together and counsel on matters of commoninterest and concern affecting public health, safety and welfare. The National Council developed the NCLEX-RN licensure examination. In 1994, the National Council implemented the NCLEX-RN in a computer adaptive testing (CAT) format.
The Kansas State Board of Nursing ("State Board") controls nurse licensing in Kansas. See K.S.A. § 65-1115 et seq. The State Board requires each applicant to pass the NCLEX-RN in the CAT format. See K.A.R. § 60-3-101(a)(3). Jeane Walsh is President of the State Board. Janet Jacobs, Bernard Becker, Jane Conroy, Janice McCart, Kimberly Hensley, Judith Hiner, Mary Carol Pomatto, Serena Stutzman and Brenda Moffitt are members of the State Board. Mary Blubaugh is Executive Administrator of the State Board and Gary Taylor is a former employee of the State Board.
In April of 2008, Turner contacted Gary Taylor at the State Board to request to take the NCLEX-RN in May of 2009 with accommodations including extra time, a private room and a reader. Taylor advised Turner that he would "take care of these requests." Taylor imposed three conditions for Turner to take the exam with accommodations: (1) proof through school records that Turner has dyslexia; (2) confirmation from Bethel that it had provided Turner the requested accommodations; and (3) a letter from Turner setting out his requests regarding accommodations. Taylor told Turner that he would let Turner know when to submit these materials. Taylor also told Turner that in his 30 years with the State Board, no applicant had requested accommodations.
During 2008, Turner took test preparation courses offered by the National Council, Kaplan and Assessment Technologies Institute. In November of 2008, Turner applied to take the NCLEX-RN in Kansas. The application form did not ask whether the applicant had disability and if so, any accommodations the applicant requested. In the last week of February of 2009, Turner contacted Taylor about submitting materials related to his dyslexia. Taylor told Turner that if he receivedaccommodations and passed the licensure examination, his nursing license would be restricted and limited.4
In March of 2009, Turner contacted the office of the State Board about "submitting the materials for his requested accommodation." Amended Complaint at 6. The State Board told him that Taylor no longer worked for the State Board but had left a note stating that Turner was planning to take the license examination in May of 2009. The State Board also told Turner that it had no knowledge that he had requested any accommodations.5
In May of 2009, Turner took the NCLEX-RN without accommodations. Turner failed the test. He asserts that "[i]f a private room had been made available . . . as an accommodation for taking the test, there would have been no need for electronic monitoring, only periodic monitoring by the test proctor, thus reducing his test anxiety." Amended Complaint (Doc. #24) at 6. He also asserts that problems existed with the CAT format of the NCLEX-RN in May of 2009.6 Specifically, although the CAT format required a test-taker to answer at least 75 questions, the CAT system inexplicably shut down after Turner had answered only 57 questions. But the National Council's report of Turner's test performance erroneously indicated that he had answered 84 questions.
Turner asked the State Board and the National Council about appealing the test result. Bothagencies told him that there was no point in appealing because no test result had ever been changed. As a result, Turner cannot earn an income as a licensed, registered nurse in Kansas or in any other state. On January 31, 2011, Turner filed this lawsuit. On September 2, 2011, he filed an amended complaint.
Plaintiff brings seven ADA claims against the State Board and its members and employees in their official and individual capacities (collectively, the "Kansas Defendants"). Doc. #24, Counts I-VII. For each claim, plaintiff seeks monetary damages of more than $75,000 and unspecified declaratory and injunctive relief.7 Turner also asserts two ADA claims against the National Board for injunctive relief only. Id., Counts VI, VII.
In Count I, plaintiff asserts that because the Kansas Defendants failed to provide a location on the nursing exam application for an applicant to describe disabilities and request accommodations, they discriminated against disabled individuals, including plaintiff, by excluding them from the benefits of the nursing license program in violation of 42 U.S.C. § 12132.
In Count II, plaintiff asserts that because the Kansas Defendants denied reasonable accommodations for the nursing license examination, they discriminated against him as a disabled person by excluding him from the benefits of the license program in violation of 42 U.S.C. § 12132.
In Count III - which appears almost identical to Count II - plaintiff asserts that the Kansas Defendants failed to provide him reasonable accommodations during the nursing license examination and thereby discriminated against him as a disabled person by excluding him from the benefits of the license program in violation of 42 U.S.C. § 12132.
In...
To continue reading
Request your trial