                                         No. 112,038

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                MARGARET M. QUIDACHAY,
                                      Appellee,

                                              v.

     DEPARTMENT OF CORRECTIONS, STATE OF KANSAS, EL DORADO CORRECTIONAL
      FACILITY; STATE OF KANSAS; and RAY ROBERTS, in his Individual and Official
                                    Capacities,
                                    Defendants,

                                             and

     JAMES HEIMGARTNER, in his Individual Capacity; and DEBBIE BRATTON, in her
                               Individual Capacity,
                                    Appellants.


                              SYLLABUS BY THE COURT

1.
       Whether a district court erred when considering a motion to dismiss for failure to
state a claim is a question of law subject to unlimited review.


2.
       To state a valid claim pursuant to 42 U.S.C. § 1983 (2013), a petition must allege
two essential elements: (1) the conduct complained of was committed by a person acting
under color of state law; and (2) the conduct deprived a person of rights, privileges, or
immunities secured by the United States Constitution or federal law.


3.
       A plaintiff alleging a violation of a federal statute is permitted to assert a claim
under 42 U.S.C. § 1983 unless (1) the statute does not create enforceable rights,

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privileges, or immunities within the meaning of § 1983; or (2) Congress has foreclosed
such enforcement of the statute in the enactment itself.


4.
        The Americans with Disabilities Act, 42 U.S.C. § 12101 (2012) et seq., creates an
enforceable right to bring a suit against a covered entity or employer. Because an
individual employee is not a covered entity or employer as defined by the Americans
with Disabilities Act, a plaintiff suing an individual employee has no enforceable right
under the Americans with Disabilities Act to vindicate under 42 U.S.C. § 1983.


5.
        The Americans with Disabilities Act's comprehensive enforcement scheme reflects
the intent of the United States Congress that the rights protected may not be enforced
through 42 U.S.C. § 1983.


        Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Opinion filed March 13,
2015. Reversed.


        Gaye B. Tibbets, of Hite, Fanning & Honeyman LLP, of Wichita, for appellants James
Heimgartner and Debbie Bratton.


        Donald N. Peterson, II, and Sean M. McGivern, of Withers, Gough, Pike, Pfaff & Peterson, LLC,
of Wichita, for appellee.


Before BRUNS, P.J., BUSER and POWELL, JJ.


        BRUNS, J.: This is an interlocutory appeal following the district court's denial of a
motion to dismiss a 42 U.S.C. § 1983 (2012) claim filed by a former state employee
against two other state employees in their individual capacities. In August 2013, Margaret
M. Quidachay sued James Heimgartner—the warden at the El Dorado Correctional

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Facility (EDCF)—and Debbie Bratton—the human resources manager at EDCF—as well
as several other defendants. Although the district court dismissed the other claims
asserted against Heimgartner and Bratton, it denied their motion to dismiss the 42 U.S.C.
§ 1983 claim. Moreover, the district court declined to grant Heimgartner and Bratton
qualified immunity. Because we conclude that Quidachay has failed to state a 42 U.S.C. §
1983 claim against Heimgartner and Bratton in their individual capacities, we reverse the
district court's decision.


                                          FACTS

       Quidachay was employed at EDCF as a corrections officer. On May 27, 2012, she
requested accommodation of "post assignment next to a bathroom" because she suffers
from Crohn's disease. According to Quidachay, EDCF declined to grant her request.
Subsequently, on July 24, 2012, Heimgartner—in his capacity as warden of EDCF—sent
a letter to Quidachay advising her that she would be terminated because of her inability to
perform the essential duties of her job. In response, Quidachay filed an administrative
complaint with the Kansas Civil Service Board. Prior to a hearing, however, Quidachay
and EDCF reached an agreement in which provided that certain information about her
ability to perform her job would be removed from her personnel file, that she would
tender her resignation effective July 30, 2012, and that her EDCF records would reflect
that she is eligible for rehire.


       On May 24, 2013, Quidachay filed a complaint with the Equal Employment
Opportunity Commission (EEOC). After receiving a Right to Sue letter from the EEOC,
Quidachay filed a petition in district court against Heimgartner, Bratton, and several other
defendants. Her petition asserted violations of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 (2012) et seq.; discrimination under 42 U.S.C. § 1983 and the
Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.; and violations of the Kansas
Wage Payment Act, K.S.A. 44-313 et seq. On December 3, 2013, Quidachay filed an

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amended petition, in which she added the State of Kansas and the Secretary of
Corrections as defendants. She also expanded upon her Kansas Wage Payment Act claim
and added a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b)
(2012).


       On February 25, 2014, the district court entered an order dismissing KDOC as a
party and dismissing Quidachay's claim under the Kansas Act against Discrimination.
Subsequently, on March 21, 2014, Heimgartner and Bratton—as well as the other
remaining defendants—filed a motion to dismiss. After several substantial briefings, a
hearing was held on the motion on May 20, 2014. At the hearing, the district court
granted Quidachay's oral motion to amend to include a claim against Heimgartner as a
defendant in his official capacity in addition to his individual capacity.


       On June 23, 2014, the district court held another hearing to announce its rulings on
pending motions, and a journal entry was filed about 2 weeks later. In the journal entry,
the district court dismissed various claims, including the ADA claims against the
defendants in their individual capacities. But the district court rejected Heimgartner and
Bratton's request to dismiss the § 1983 claim arising out of the alleged ADA violation
and asserted against them in their individual capacities.


       In denying the motion to dismiss the § 1983 claim, the district court found:


               "3. Plaintiff states a claim against Bratton and Heimgartner for violation of 42
       U.S.C. § 1983 for deprivation of rights under the ADA. The court finds that though the
       ADA has a remedial scheme, that scheme is not available to this Plaintiff against these
       Defendants and so she has available a § 1983 claim.


               "4. Defendants Bratton and Heimgartner are not entitled to qualified immunity
       for § 1983 disability discrimination because the right to be free of disability



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       discrimination, which includes the right to have reasonable accommodation, is clearly
       established."


       Subsequently, this court granted Heimgartner and Bratton's application for
permission to take an interlocutory appeal from the district court's decision not to dismiss
the § 1983 claim asserted against them in their individual capacities.



                                                ANALYSIS


Issue Presented and Standard of Review

       Heimgartner and Bratton contend that the district court erred in denying their
motion to dismiss the 42 U.S.C. §1983 claim filed against them in their individual
capacities. Specifically, Heimgartner and Bratton argue that because Quidachay could not
state a claim for damages for violation of the ADA against them in their individual
capacities, she cannot make the same claim actionable by casting it as a §1983 claim. In
response, Quidachay argues that she should be allowed to vindicate her rights under the
ADA against Heimgartner and Bratton in their individual capacities through 42 U.S.C.
§1983. The parties agree, however, that the determination of whether a district court erred
when it considered a motion to dismiss for failure to state a claim involves a question of
law subject to an unlimited standard of review. See Cohen v. Battaglia, 296 Kan. 542,
545-46, 293 P.3d 752 (2013).


Failure to Dismiss § 1983 Claim

       42 U.S.C. § 1983 states:


               "Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States
       . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution

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       and laws, shall be liable to the party injured in an action at law, suit in equity, or other
       proper proceeding for redress . . . ."


       It is important to recognize that 42 U.S.C. § 1983 "is not a source of rights, but
rather a method for vindicating other federal rights conferred elsewhere." Purvis v.
Williams, 276 Kan. 182, Syl. ¶ 13, 73 P.3d 740 (2003). In order to state a valid claim
under § 1983, "a petition must allege two essential elements: (1) whether the conduct
complained of was committed by a person acting under color of state law, and (2)
whether this conduct deprived a person of rights, privileges, or immunities secured by the
Constitution or federal law." 276 Kan. 182, Syl. ¶ 13.


       Here, Quidachay asserts that she has Crohn's disease, which "substantially limited
one or more of her major life functions, and [she] is a qualified individual with a
disability as a result." Quidachay further asserts that while she was employed as a
corrections officer at EDCF, her request to her employer to be given a post assignment
next to a bathroom because of her Crohn's disease was denied. As a result, Quidachay
argues that her employer intentionally discriminated against her "by failing to
accommodate her disability, by terminating her employment, and in retaliating against
her by refusing to reinstate her employment."


       Specific to Heimgartner and Bratton, Quidachay asserts that they intentionally
discriminated against her in carrying out their duties on behalf of EDCF. She also asserts
that their actions "deprived [her] of rights protected by the Equal Protection Clause to the
Fourteenth Amendment of the Constitution and the Americans with Disabilities Act."
Although Quidachay has acknowledged that she is not pursuing an Equal Protection
claim separate from her claim under the ADA, she seeks a judgment "against Defendants
Heimgartner and Bratton, in their individual capacities, for actual damages, economic
losses, compensatory damages, punitive damages as allowed by law, attorneys fees, all



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appropriate interest and costs, and any other relief which the Court deems just and
equitable."


       The district court ruled that Quidachay does not have a cause of action under the
ADA against Heimgartner and Bratton in their individual capacities because the Act does
not provide personal liability to those who are not employers. See Butler v. City of
Prairie Village, Kan., 172 F.3d 736, 744 (10th Cir. 1999). Although this ruling is not
challenged by Quidachay, she argues that Heimgartner and Bratton should be held
personally liable under § 1983 because they allegedly acted under color of state law when
they refused her accommodation request and terminated her in retaliation for exercising
her rights under the ADA. On the other hand, Heimgartner and Bratton argue that
because Quidachay had no legal right to assert an ADA claim against them in their
individual capacities, she should not be allowed to use § 1983 to do so.


       In Purvis, a former employee of the Kansas Department of Wildlife and Parks
brought an employment discrimination suit against department officials in their
individual and official capacities. The former employee claimed that in terminating his
employment, the defendants "(1) violated 29 U.S.C. § 794 (2000) of the federal
Rehabilitation Act; (2) violated federal civil rights law under 42 U.S.C. § 1983 (2000);
and (3) discharged him in retaliation for exercising his rights under the Kansas Civil
Service System and for exercising rights afforded to handicapped individuals." 276 Kan.
at 185. The Kansas Supreme Court, however, determined that the former employee failed
to state a claim under the Rehabilitation Act against the department officials in their
individual capacities because they did not meet the definition of a "program or activity"
under the Act. 276 Kan. 182, Syl. ¶ 6.


       The Kansas Supreme Court determined in Purvis that the dismissal of the former
employee's 42 U.S.C. § 1983 claim for violation of the Rehabilitation Act against the
department officials in their individual capacities was appropriate. 276 Kan. at 198-99. In

                                              7
doing so, our Supreme Court explained that "[a] plaintiff alleging a violation of a federal
statute is permitted to sue under § 1983 unless (1) the statute does not create enforceable
rights, privileges, or immunities within the meaning of § 1983; or (2) Congress
foreclosed such enforcement of the statute in the enactment itself." 276 Kan. at 198-99
(citing Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S. Ct. 2510, 110 L. Ed.
2d 455 [1990]). Because the Rehabilitation Act only created an enforceable right to bring
a lawsuit against a "program or activity" for discrimination and a government official in
their individual capacity is not a either a program or an activity, our Supreme Court
concluded that the former employee "had no enforceable right under the Rehabilitation
Act to vindicate under a § 1983 claim." Purvis, 276 Kan. at 199.


       Although Purvis addressed a claim under the Rehabilitation Act that preceded the
ADA, we find its rationale for the decision to be equally applicable to the present case.
Similar to our Supreme Court's conclusion in Purvis, the Tenth Circuit Court of Appeals
has found that "the ADA precludes personal capacity suits against individuals who do not
otherwise qualify as employers under the statutory definition." Butler, 172 F.3d at 744. In
Butler, the Tenth Circuit expressly held that "the individual defendants named in this
action may not be held liable for discrimination or retaliation in violation of the ADA."
(Emphasis added.) 172 F.3d at 744.


       Additionally, in Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), which was cited
by the Kansas Supreme Court in Purvis, the Ninth Circuit Court of Appeals held that a
plaintiff cannot bring a § 1983 claim against individuals alleging ADA violations as
constitutional violations. The Vinson court reasoned that a "'comprehensive remedial
scheme for the enforcement of a statutory right creates a presumption that Congress
intended to foreclose resort to more general remedial schemes to vindicate that right.'"
288 F.3d at 1155 (citing Lollar v. Baker, 196 F.3d 603, 609 [5th Cir. 1999]).




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       As the United States Supreme Court has held, Congress may foreclose a remedy
under 42 U.S.C. § 1983 either "expressly . . . or impliedly, by creating a comprehensive
enforcement scheme that is incompatible with individual enforcement under § 1983."
Blessing v. Freestone, 520 U.S. 329, 341, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997)
(citing Livadas v. Bradshaw, 512 U.S. 107, 133, 114 S. Ct. 2068, 129 L. Ed. 2d 93
[1994]). As numerous federal courts have found, we find that the ADA's comprehensive
enforcement scheme reflects the intent of Congress that the rights protected in the act are
not to be enforced through § 1983. See Okwu v. McKim, 682 F.3d 841, 845 (9th Cir.
2012); Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999); Lollar, 196
F.3d at 609-10; Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir.
1997). Thus, Quidachay may not use § 1983 to enforce her alleged ADA violations.



                                       CONCLUSION


       The district court appropriately dismissed Quidachay's ADA claim because the
Act does not impose individual liability. But the district court should have also dismissed
Quidachay's § 1983 claim—arising out of an alleged violation of the ADA by
Heimgartner and Bratton in their individual capacities—for failure to state a claim upon
which relief can be granted. In light of this ruling, we do not address the issue of
qualified immunity.


       Reversed.




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