Overstreet v. University of Kansas Hospital Authority, The et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAREN OVERSTREET,
Plaintiff,
v.
THE UNIVERSITY OF KANSAS HOSPITAL
AUTHORITY, et al.,
Defendants.
Case No. 25-2735-KHV-BGS
REPORT AND RECOMMENDATION FOR DISMISSAL
Plaintiff Karen Overstreet proceeds pro se and in forma pauperis in this civil-rights and
disability-discrimination action arising from events at the KUMC Emergency Department on May
7–8, 2023. The Court previously screened Plaintiff’s first amended complaint and recommended
dismissal. The District Judge adopted that recommendation in part, dismissed Plaintiff’s claims
based on criminal statutes and all claims against the University of Kansas Police Department, but
allowed Plaintiff an opportunity to amend her remaining claims because she might be able to cure
the pleading deficiencies identified in the prior Report and Recommendation. See Doc. 24. Plaintiff
has now filed a second amended complaint, which the Court screens under 28 U.S.C. § 1915(e)(2).
I. 	Standard of Review for IFP Complaints
When a plaintiff proceeds IFP, the court may screen the complaint under 28 U.S.C. §
1915(e)(2). The court “shall dismiss” an IFP case at any time if it determines that the action is
frivolous or malicious, fails to state a claim, or seeks monetary relief from an immune defendant. 28
U.S.C. § 1915(e)(2). The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.”
Harris v. Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992). Sua sponte dismissal under §1915(e) may be
appropriate when “on the face of the complaint it clearly appears that the action is frivolous or
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malicious.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991).
In evaluating whether dismissal is appropriate, the Court applies the same standard used for
motions under Federal Rule of Civil Procedure 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007). The Court accepts well-pleaded facts as true and draws reasonable inferences in the
plaintiff’s favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). To survive screening, the
complaint must contain sufficient factual matter to state a claim that is plausible on its face;
conclusory allegations are insufficient. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–70 (2007).
Although a complaint need not include detailed factual allegations, it must provide sufficient notice
of the claims asserted so that a defendant may reasonably respond. Fed. R. Civ. P. 8(a); Monroe v.
Owens, 38 Fed. App’x 510, 515 (10th Cir. 2002). Because Plaintiff proceeds pro se, the Court
construes her filings liberally, but she must still allege sufficient facts to support a recognized legal
claim. Hall, 935 F.2d at 1110.
II. 	Plaintiff’s Claims and Factual Allegations
The following facts are taken from the second amended complaint and accepted as true for
screening purposes. The second amended complaint names three institutional defendants: the
University of Kansas Hospital Authority (“KUHA”), the University of Kansas Health System
(“KUHS”), and the University of Kansas Medical Center (“KUMC”). Plaintiff alleges that KUHA
operates the University of Kansas Hospital and related facilities; that KUHS is the operating name
of KUHA’s network of hospitals and clinics; and that KUMC is a state educational institution
governed by the Kansas Board of Regents. Doc. 26 at ¶¶ 2–4. Plaintiff also names several
individual defendants. Gutierrez, Cronk, White, Mahoney, and Cowdrey are alleged to be university
police officers employed by KUMC, while France, Zimmerman, Broddle, and John Doe are alleged
to be nurses or nurse assistants employed in the KUHA/KUHS emergency department. Id. ¶¶ 5–7.
Plaintiff underwent major surgery at KUMC on April 26, 2023. Id. ¶ 14. On May 7, 2023,
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she developed severe postoperative complications and was transported by ambulance to the KUMC
Emergency Department. Id. ¶ 15. Before transport, paramedics placed a large sleep shirt on her,
but she remained otherwise unclothed. Id. ¶ 16.
When Plaintiff arrived at the emergency department, Nurse France allegedly told
paramedics, “She’s a regular. Dump her.” Id. ¶ 17. At France’s direction, Plaintiff was dropped
onto the floor from a gurney or backboard, causing injury and exposing her body to others in the
waiting area. Id. ¶ 18. France and Broddle then repeatedly instructed her to stand without assistance
and sit in a hard-surfaced wheelchair despite her recent surgery, postoperative restrictions, and
requests for emergency medical assistance. Id. ¶¶ 19–20. KUMC medical staff then called university
police and reported that Plaintiff was disruptive and uncooperative. Id. ¶ 21.
Officers Cronk and Gutierrez arrived, requested a recliner, and assisted Broddle in helping
Plaintiff stand from the floor and transfer to the recliner. Id. ¶ 22. Her body remained exposed
until police urged staff to provide coverage. Id. ¶ 23. Broddle, Gutierrez, and Cronk then moved
Plaintiff to a hallway near a restroom and police/security rooms. Id. ¶ 24. KUMC staff, including
Broddle and France, later helped place pants on her in view of other patients, visitors, and staff who
were not involved in her care. Id. ¶ 25.
The second amended complaint also describes an alleged physical assault by an unidentified
emergency-department staff member. Plaintiff states that the staff member struck her in the
abdomen near her surgical site, causing her to lose consciousness. Id. ¶ 26. When she regained
consciousness, she was back in the waiting room on a recliner, covered with blankets, disoriented,
and in severe pain. Id. ¶¶ 27–28. Zimmerman and other KUMC personnel allegedly failed to
provide a mental-health screening or call the psychiatric department, despite a prior agreement
between Plaintiff and the hospital. Id. ¶ 29.
Plaintiff requested restroom assistance, but Broddle, France, Gutierrez, and Cronk allegedly
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required her to ambulate without a walking aid or support. Id. ¶ 30. KUMC medical staff then
allegedly falsely reported to university police that Plaintiff had been walking around the waiting
room without pants and exposing herself. Id. ¶ 31. According to the second amended complaint,
Officer Gutierrez initiated criminal charges despite no evidence of a crime, and Gutierrez and Cronk
subjected Plaintiff to custodial control without reasonable suspicion, corroborated evidence, medical
assessment, or probable cause. Id. ¶¶ 33–34. Plaintiff further states that because KUMC would not
provide medical assistance, she was forced to perform “painful digital disimpactions” in the
emergency-department restroom. Id. ¶ 35. Officers then cited her for criminal trespass and indecent
exposure and arranged transportation back to her Airbnb by cab voucher. Id. ¶ 36.
The next morning, Plaintiff missed a virtual appointment with a KUMC pain psychologist,
which prompted KUMC medical staff to call 911 for a welfare check. Id. ¶¶ 37–38. Plaintiff was
then transported to St. Luke’s Hospital less than twelve hours after university police sent her home.
Id. ¶ 38. St. Luke’s staff contacted KUMC, and KUMC staff allegedly stated that Plaintiff was a liar
and provided inaccurate information about her condition. Id. ¶ 39.
After the incident, Plaintiff contacted KUMC and Patient Experience Specialist Suzanne
Lane-Tanner. Id. ¶ 40. Lane-Tanner directed Plaintiff to Captain Mahoney, who agreed to
investigate and arrange a time for Plaintiff to view video footage. Id. Mahoney later allegedly told
Plaintiff that he did not see her exposing herself or walking around without pants on video, but
refused to drop the charges because of a “no tolerance policy” and because he “wasn’t there.” Id. ¶
41. Mahoney also allegedly refused to allow Plaintiff to view the video. Id. Mahoney and Lane-
Tanner told Plaintiff that she would have to appear in court before the charges could be dismissed.
Id. ¶ 42. Lane-Tanner also allegedly warned Plaintiff that the charges could affect her teaching
career and require sex-offender registration if she were convicted. Id. ¶ 43.
On May 30, 2023, Plaintiff submitted a medical-record correction request challenging the
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note that she had been walking around the waiting room without pants and asking KUMC to verify
the statement using video. Id. ¶ 45. According to the second amended complaint, staff ignored the
request and did not process it for more than two years. Id. Plaintiff later sought records from
KUMC, KUHS, KUHA, and KUMC police personnel, but was asked to pay nearly $7,000 before
the information would be released. Id. ¶ 50. In December 2025, after this lawsuit was filed, a
KUHS privacy officer told Plaintiff that Broddle had reviewed her amendment request and
determined that the disputed statements in the medical record were accurate. Id. ¶¶ 52–53.
Plaintiff claims physical injury, psychological trauma, humiliation, reputational harm,
monetary loss, worsened postoperative complications, and continuing medical and emotional harm.
Id. ¶¶ 54–55, 90–96. She also pleads tolling allegations. The second amended complaint states that
the emergency-department visit occurred on May 7–8, 2023, that the criminal case was disposed of
in August 2023, and that her claims are timely based on equitable tolling, delayed discovery, and
fraudulent concealment. Id. ¶¶ 56–63.
The second amended complaint asserts six counts. Count I asserts a Title II ADA claim
against KUHA, KUHS, and KUMC based on alleged denial of accommodations, mobility assistance,
restroom access, stabilizing treatment, and appropriate triage. Id. ¶¶ 64–69. Count II asserts a
Rehabilitation Act claim based on similar allegations and alleges that KUHA, KUHS, and KUMC
receive federal financial assistance. Id. ¶¶ 70–73. Count III asserts an EMTALA claim based on the
alleged failure to provide an appropriate medical screening and stabilizing treatment during the May
7–8, 2023 emergency-room encounter. Id. ¶¶ 74–76. Count IV asserts a § 1983 conspiracy and
obstruction claim based on alleged delays, restrictions, or incomplete production of records and
alleged efforts to deter Plaintiff from challenging the charges or pursuing her rights. Id. ¶¶ 77–82.
Count V asserts a § 1983 claim for retaliation, due process violations, and conspiracy based on
alleged fabrication of allegations, issuance of false citations, obstruction of record access, and
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coordination with prosecutors. Id. ¶¶ 83–85. Count VI asserts a deliberate-indifference and
continuing-harm claim under the Fourteenth Amendment. Id. ¶¶ 86–89. The second amended
complaint also references the Kansas Act Against Discrimination, KORA, and HIPAA, though it
does not separately plead those references as independent counts. Id. ¶¶ 9, 50, 77. Plaintiff seeks
compensatory damages, punitive damages, declaratory relief, and injunctive relief. Id. ¶ 96.
III. 	Recommendation of Dismissal
The second amended complaint is more specific than Plaintiff’s prior pleading, but it
remains subject to dismissal. The Court first addresses timeliness because the face of the pleading
shows that Plaintiff’s federal claims arise from events in May 2023, or at the latest, the disposition of
criminal charges in August 2023, yet this case was not filed until December 2025. Plaintiff pleads
tolling, but the alleged facts show that she knew the essential basis for her claims in 2023.
The Court then addresses alternative grounds for dismissal. Plaintiff’s ADA, Rehabilitation
Act, and EMTALA claims fail against the individual defendants and are otherwise inadequately
pleaded. Plaintiff’s § 1983 claims also fail because the Second Amended Complaint does not
identify a specific constitutional right, connect each defendant’s conduct to a violation of that right,
or satisfy Rule 8. Finally, because no federal claim should proceed, the Court recommends declining
supplemental jurisdiction over any remaining state-law claims.
a. 	Statute of Limitations
The second amended complaint remains subject to dismissal because the federal claims are
untimely. Although statute-of-limitations defenses are typically resolved after service, dismissal at
screening may be appropriate where untimeliness is “obvious from the face of the amended
complaint and no further factual record is required to be developed.” Fratus v. DeLand, 49 F.3d 673,
674–75 (10th Cir. 1995) (internal quotations omitted).
1. 	Two-Year Statute of Limitations Period
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Plaintiff’s claims arise principally from events at the KUMC Emergency Department on May
7–8, 2023. The second amended complaint alleges that Plaintiff was transported to the KUMC
Emergency Department on May 7, 2023, following major surgery; was denied assistance and medical
care; was physically mishandled; lost consciousness; was cited for trespass and indecent exposure;
and was sent home by university police officers. Plaintiff further alleges that the criminal case was
disposed of in August 2023. Doc. 26 at ¶ 56. Plaintiff filed this action on December 10, 2025. See
Doc. 1.
The applicable limitations periods are two years. Claims under 42 U.S.C. § 1983 borrow
Kansas’s two-year limitations period for personal injury actions. See Brown v. Unified Sch. Dist. 501,
Topeka Pub. Schs., 465 F.3d 1184, 1188 (10th Cir. 2006); K.S.A. 60-513(a)(4). Claims under Title II of
the ADA and Section 504 of the Rehabilitation Act likewise borrow the applicable state limitations
period; in Kansas, that period is two years. See Sullivan v. HCA Healthcare, Inc., No. 19-2034-JAR-TJJ,
2019 WL 4034473, at *4–5, n.39 (D. Kan. Aug. 27, 2019) (applying Kansas’s two-year personal-
injury limitations period to Title II ADA claims because federal law supplies no limitations period
for such claims); see also Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1174 (10th Cir. 2015)
(holding that Rehabilitation Act claims arising in Kansas are subject to Kansas’s two-year statute of
limitations); Baker v. Bd. of Regents of State of Kan., 991 F.2d 628, 631–32 (10th Cir. 1993) (same).
EMTALA contains its own two-year limitations period. See 42 U.S.C. § 1395dd(d)(2)(C).
Plaintiff therefore had until May 2025 to bring claims based on the May 7–8, 2023
emergency-room encounter, and until August 2025 at the latest to bring any malicious-prosecution-
type claim arising from the criminal citations. She did not file suit until December 2025. Her
federal claims are therefore untimely unless her tolling allegations plausibly save them.
2. 	Equitable Tolling
Plaintiff pleads equitable tolling, delayed discovery, and fraudulent concealment. Doc. 26 at
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¶¶ 56–63. Those allegations do not save her claims. Federal law governs when a federal claim
accrues. Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). A civil-rights claim accrues
when the facts supporting the claim “are or should be apparent,” and a plaintiff need not know
every piece of evidence or appreciate every legal theory before the limitations period begins to run.
Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995); Alexander, 382 F.3d at 1215. Kansas’s discovery
rule similarly focuses on when the fact of injury is reasonably ascertainable, not when the plaintiff
obtains all supporting evidence. See K.S.A. 60-513(b).
Equitable tolling is a narrow doctrine. It is a “rare remedy” that applies only in unusual or
extraordinary circumstances and is applied sparingly. Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir.
2008). The plaintiff bears the burden to show both diligence and that extraordinary circumstances
prevented timely filing. Sullivan, 2019 WL 4034473, at *5. Courts have generally allowed equitable
tolling only where the plaintiff timely pursued judicial remedies in the wrong forum or where the
defendant’s misconduct induced or tricked the plaintiff into missing the filing deadline. Id. Tolling
is not warranted merely because a plaintiff proceeds pro se, is unaware of filing requirements,
experiences ordinary difficulty gathering evidence, or faces personal hardship that does not amount
to legal incapacity or actually prevent timely filing. See id. at *5–6.
Fraudulent concealment likewise requires more than silence, nondisclosure, or difficulty
obtaining evidence. The plaintiff must plead facts showing some affirmative act, artifice, or
misrepresentation designed to prevent discovery of the facts giving rise to the claim, and must also
explain why reasonable diligence did not or could not have led to discovery of the claim. See
Alexander, 382 F.3d at 1217–18; Freebird, Inc. v. Merit Energy Co., 883 F. Supp. 2d 1026, 1036–37 (D.
Kan. 2012). And as to EMTALA, the statute provides that no action may be brought more than
two years after the alleged violation, 42 U.S.C. § 1395dd(d)(2)(C), and this District has held that
EMTALA’s limitations period is not subject to equitable tolling. Brewer ex rel. Brewer v. Miami Cnty.
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Hosp., 862 F. Supp. 305, 307–08 (D. Kan. 1994) (“[T]he legislative history, like the plain language of
the statute, does not support a finding that principles of equitable tolling should be applied to the
EMTALA statute of limitations.”).
Here, Plaintiff’s tolling allegations do not save her claims. The second amended complaint
shows that Plaintiff knew the essential facts supporting her claims in 2023. She knew during the
May 7–8, 2023 emergency-room encounter that she allegedly had been denied medical assistance,
denied restroom and mobility accommodations, exposed to others, struck near her surgical site,
required to ambulate without assistance, cited for criminal trespass and indecent exposure, and
discharged without stabilizing treatment. Doc. 26 at ¶¶ 18–36. She also knew shortly after the
encounter that KUMC personnel had allegedly made false statements about her conduct, that
criminal charges had been initiated, and that KUMC and police personnel were refusing to provide
her access to video or records she believed would corroborate her version of events. Id. ¶¶ 40–47.
Indeed, Plaintiff submitted a medical-record correction request on May 30, 2023, challenging the
statement that she had been walking around without pants and asking KUMC to verify the
statement using video. Id. ¶ 45. These allegations show that the facts supporting Plaintiff’s claims
were reasonably ascertainable in 2023, even if she did not yet possess all records, video footage, or
other evidence she believed would support those claims.
Nor do Plaintiff’s allegations of fraudulent concealment or hardship support tolling.
Plaintiff alleges that Defendants delayed, restricted, or refused access to records and video, but those
allegations concern evidence Plaintiff hoped to obtain to prove claims she already knew existed.
They do not plausibly allege that Defendants concealed the existence of the injury or prevented
Plaintiff, despite reasonable diligence, from discovering that she had potential claims. Plaintiff also
alleges serious medical, financial, and personal hardships. Id. ¶¶ 60–62. Those allegations are
significant, but they do not show legal incapacity or that extraordinary circumstances actually
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prevented Plaintiff from filing suit during the applicable limitations periods. To the contrary, the
second amended complaint reflects that Plaintiff actively contacted KUMC personnel, police
personnel, medical-records personnel, and others about the incident during the limitations period.
Id. ¶¶ 40–53. Plaintiff’s tolling allegations therefore do not extend the limitations period.
Because Plaintiff filed this action after the applicable limitations periods expired and has not
pleaded facts supporting tolling, her ADA, Rehabilitation Act, § 1983, and EMTALA claims are
untimely. The Court therefore recommends dismissal of Plaintiff’s federal claims on that basis.
b. 	Alternative Grounds for Dismissal
In addition to the timeliness issue, the second amended complaint also fails to state several
viable federal claims. The Court addresses these alternative grounds to provide a complete
screening analysis and to explain why amendment did not cure the substantive defects in Plaintiff’s
remaining claims. These grounds independently support dismissal under § 1915(e)(2)(B)(ii).
1. 	ADA and Rehabilitation Act
Counts I and II assert claims under Title II of the ADA and Section 504 of the
Rehabilitation Act. Title II applies to discrimination by a “public entity,” and Section 504 applies to
discrimination by a “program or activity receiving Federal financial assistance.” 42 U.S.C. §§
12131(1), 12132; 29 U.S.C. § 794(a). Courts generally analyze Title II and Section 504 claims
together because they impose substantially similar standards. Hamer v. City of Trinidad, 924 F.3d
1093, 1099 (10th Cir. 2019). See also Sullivan, 2019 WL 4034473, at *6 (“[C]ase law interprets the
Rehabilitation Act and the ADA as interchangeable.”). To state a claim, Plaintiff must plausibly
allege that she is a qualified individual with a disability, that she was excluded from or denied the
benefits of a covered service, program, or activity, and that the exclusion, denial, or discrimination
occurred by reason of her disability. See Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185,
1193 (10th Cir. 2007); Tyler v. City of Manhattan, 857 F. Supp. 800, 817 (D. Kan. 1994).
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Counts I and II fail as to the individual defendants because neither Title II nor Section 504
imposes individual-capacity liability on employees, officers, nurses, doctors, or other personnel who
work for a covered entity or program. The Tenth Circuit recently explained that “[o]nly public
entities are subject to the ADA’s provision barring discrimination based on disability in public
services, programs, and activities,” and that “[i]t follows that an individual cannot be held liable
under Title II.” Haulmark v. City of Wichita, No. 22-3243, 2024 WL 3219677, at *4 n.4 (10th Cir. June
28, 2024). The same principle applies to Section 504 because the statute reaches covered programs
or activities receiving federal financial assistance, not individual employees of those programs. See
Moore v. Cooksey, No. 00-1109, 2000 WL 1838274, at *1–2 (10th Cir. Dec. 14, 2000) (affirming
dismissal of Rehabilitation Act claims against individual defendants because they were not subject to
personal liability for damages); Wilson v. Hous. Auth. of Silver Lake, Kan., No. 19-4026-HLT-ADM,
2019 WL 2943054, at *2 (D. Kan. May 30, 2019) (recommending dismissal of ADA and
Rehabilitation Act claims against individual defendants because those statutes do not impose
individual liability).
Here, Plaintiff alleges that France, Broddle, Zimmerman, Gutierrez, Cronk, and White
denied assistance or discriminated against her during the emergency-room encounter. Doc. 26 at ¶¶
67–72. Those allegations may describe conduct by individual employees or officers, but they do not
create individual-capacity liability under Title II or Section 504. The undersigned therefore
recommends dismissal of Counts I and II against the individual defendants.
Counts I and II also fail to state plausible ADA or Rehabilitation Act claims against KUHA,
KUHS, and KUMC. The ADA and Rehabilitation Act prohibit disability discrimination; they do
not convert every dispute over medical treatment into a federal disability-discrimination claim. See
Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (explaining that “purely medical
decisions” do not ordinarily fall within the scope of the ADA); Johnson ex rel. Johnson v. Thompson, 971
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F.2d 1487, 1493–94 (10th Cir. 1992) (explaining that Section 504 does not create an absolute
substantive right to medical treatment and that the “otherwise qualified” requirement does not
ordinarily fit the medical-treatment context); Sullivan, 2019 WL 4034473, at *6–7 (dismissing ADA
and Rehabilitation Act claims based on alleged failure to diagnose or treat a medical condition).
Here, much of Plaintiff’s ADA and Rehabilitation Act theory challenges the adequacy of the
medical care she received in the emergency department. She alleges that staff failed to conduct
proper triage, failed to provide stabilizing treatment, ignored signs of medical distress, and
discharged her without appropriate care. Doc. 26 at ¶¶ 67, 71, 74–75. Those allegations may
describe negligent or inadequate medical care, but they do not plausibly allege that KUHA, KUHS,
or KUMC denied Plaintiff services because of her disability. The second amended complaint does
not allege facts showing that similarly situated non-disabled patients received different emergency-
room screening, triage, treatment, or discharge decisions.
Plaintiff also alleges that staff denied her mobility assistance and safe restroom access. Id. ¶¶
67, 71. Those allegations are closer to a reasonable-accommodation theory, but they remain
insufficient as pleaded against the institutional defendants. A public entity may be liable for failing
to make reasonable accommodations when such accommodations are necessary to provide
meaningful access to its services. Robertson, 500 F.3d at 1195. But a plaintiff must plead facts
showing that the entity knew of the disability-related limitation and the need for accommodation,
and that the denial of accommodation caused exclusion from, or unequal access to, the entity’s
services. See id.; J.L. v. N.M. Dep’t of Health, 165 F. Supp. 3d 1048, 1073–74 (D.N.M. 2016)
(dismissing accommodation claim based on conclusory allegations that did not identify specific
modifications or facts showing necessity). The second amended complaint alleges that individual
nurses and officers denied Plaintiff assistance during a single emergency-room encounter, but it does
not allege that KUHA, KUHS, or KUMC denied Plaintiff meaningful access to emergency services
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because of disability, refused a specific reasonable accommodation on an institutional basis, or
maintained a policy or practice that caused disability-based discrimination.
Accordingly, even apart from timeliness, the undersigned recommends dismissal of Counts I
and II against the individual defendants because Title II and Section 504 do not impose individual-
capacity liability, and they fail against KUHA, KUHS, and KUMC because Plaintiff has not plausibly
alleged disability-based discrimination or denial of a reasonable accommodation by those
institutional defendants.
2. 	EMTALA
Count III asserts a claim under EMTALA based on the alleged failure to provide an
appropriate medical screening and stabilizing treatment during Plaintiff’s May 7–8, 2023 emergency-
room encounter. Doc. 26 at ¶¶ 74–76. This claim should be dismissed.
First, as stated earlier, the EMTALA claim is untimely and equitable tolling does not apply.
EMTALA provides that “[n]o action may be brought . . . more than two years after the date of the
violation.” 42 U.S.C. § 1395dd(d)(2)(C). Plaintiff’s EMTALA claim arises from the May 7–8, 2023
emergency-room encounter, but she did not file this action until December 10, 2025. The claim was
therefore filed more than two years after the alleged violation. And this District has held that
EMTALA’s two-year limitations period is not subject to equitable tolling. Brewer ex rel. Brewer, 862 F.
Supp. at 308. Count III is therefore time-barred.
Second, EMTALA does not provide a private right of action against individual medical
providers, nurses, officers, or other hospital personnel. Its private cause of action runs against a
participating hospital. See Delaney v. Cade, 986 F.2d 387, 393–94 (10th Cir. 1993) (holding that
EMTALA authorizes private suits against participating hospitals, not individual physicians); Ward v.
Lutheran Med. Ctr., 769 F. App’x 595, 599, n.3 (10th Cir. 2019) (“The EMTALA does not provide a
private right of action against individual physicians or other hospital personnel.”). Count III
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therefore fails as to France, Zimmerman, Broddle, John Doe, and the individual police-officer
defendants.
Third, even apart from timeliness and individual liability, the second amended complaint
does not plausibly plead an EMTALA screening or stabilization claim. EMTALA requires a
participating hospital to provide “an appropriate medical screening examination” to determine
whether an emergency medical condition exists. 42 U.S.C. § 1395dd(a). In the Tenth Circuit, an
“appropriate” screening is measured by the hospital’s own standard screening procedures; the
question is whether the hospital followed those procedures, not whether the screening was medically
adequate or whether the hospital reached the correct diagnosis. Repp v. Anadarko Mun. Hosp., 43
F.3d 519, 522–23 (10th Cir. 1994). See also Tank v. Chronister, 941 F. Supp. 969, 972–74 (D. Kan.
1996) (“[EMTALA] obliges a hospital to create standard emergency room screening procedures
based upon the hospital's particular needs and circumstances.”). Plaintiff alleges that the screening
and triage she received were inadequate, dismissive, and based on false information, but she does
not identify any KUMC emergency-room screening procedure or allege that the hospital departed
from its standard screening process for similarly situated patients. Those allegations sound in
inadequate care or negligence, not an EMTALA screening violation.
Nor does Plaintiff plausibly plead a stabilization claim. EMTALA’s stabilization obligation
arises when the hospital determines that the patient has an emergency medical condition. 42 U.S.C.
§ 1395dd(b). The stabilization requirements do not apply unless the hospital actually detects or
diagnoses an emergency medical condition. Green v. Reddy, 918 F. Supp. 329, 335 (D. Kan. 1996)
(holding that EMTALA’s stabilization and transfer requirements do not operate unless the hospital
actually diagnoses an emergency medical condition). See also Kilroy v. Star Valley Med. Ctr., 237 F.
Supp. 2d 1298, 1303 (D. Wyo. 2002) (explaining that a hospital has a duty to stabilize only
emergency conditions its staff detects). Plaintiff alleges that Defendants should have recognized and
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treated her postoperative complications, but she does not allege facts showing that KUMC actually
determined that she had an emergency medical condition and then discharged or transferred her
without stabilizing that known condition.
EMTALA is an anti-dumping statute, not a federal medical-malpractice statute. It does not
create a federal remedy for negligent treatment, inadequate diagnosis, or poor medical judgment.
Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 798 (10th Cir. 2001) (explaining that EMTALA does not
set a federal standard of care or provide a remedy for an inadequate or inaccurate diagnosis); Parker
v. Salina Reg’l Health Ctr., Inc., 463 F. Supp. 2d 1263, 1269 (D. Kan. 2006) (explaining that EMTALA
is neither a malpractice nor negligence statute). Because Plaintiff’s EMTALA allegations are
untimely and, alternatively, do not plausibly allege an EMTALA screening or stabilization violation,
the undersigned recommends dismissal of Count III.
3. 	Section 1983 Claims
Counts IV, V, and VI are the only claims Plaintiff brings under § 1983. Those counts are
labeled as claims for conspiracy, obstruction, retaliation, due process violations, deliberate
indifference, and continuing harm. Doc. 26 at ¶¶ 77–89. As explained below, Plaintiff’s § 1983
claims fail for several independent reasons. To the extent she asserts claims against individual
defendants in their official capacities, those claims are not properly pleaded. And to the extent she
asserts individual-capacity claims, she does not identify the specific constitutional right allegedly
violated or plead facts giving each defendant fair notice of the claim asserted against him or her.
The undersigned therefore recommends dismissal of Counts IV, V, and VI.
a) 	Official Capacity Claims
Plaintiff’s § 1983 claims also fail to the extent asserted against individual defendants in their
official capacities. An official-capacity claim is treated as a claim against the entity the official
represents. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Porro v. Barnes, 624 F.3d 1322, 1328
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(10th Cir. 2010). State agencies and state officials sued for damages in their official capacities are not
“persons” under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). And to the extent
Plaintiff seeks to hold a public entity liable under § 1983, she must allege that a policy or custom
caused the constitutional injury; respondeat superior is not enough. Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691–94 (1978); Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir.
2013). The second amended complaint alleges a single emergency-room encounter and later records
disputes, but it does not allege that any institutional policy or custom caused a constitutional
violation.
b) Plaintiff Does Not Identify a Specific Constitutional Right
Counts IV, V, and VI invoke § 1983 and use labels such as conspiracy, obstruction,
retaliation, due process, deliberate indifference, and continuing harm. Doc. 26 at ¶¶ 77–89. Section
1983 does not create substantive rights; it provides a remedy for violations of rights secured by the
Constitution or federal law. Albright v. Oliver, 510 U.S. 266, 271 (1994). To state an individual-
capacity claim under § 1983, Plaintiff must plausibly allege that each defendant, acting under color of
state law, personally participated in the deprivation of a specific federal right. See Pahls v. Thomas, 718
F.3d 1210, 1225–26 (10th Cir. 2013); Brown v. Montoya, 662 F.3d 1152, 1163–64 (10th Cir. 2011).
The Court also must analyze each theory under the specific constitutional provision that
applies. The Supreme Court has instructed that where a particular amendment provides an explicit
textual source of constitutional protection, that amendment—not generalized substantive due
process—governs the claim. Graham v. Connor, 490 U.S. 386, 395 (1989). See also Albright v. Oliver,
510 U.S. 266, 273 (1994) (“Where a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not
the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these
claims.’”). Thus, Plaintiff cannot convert allegations about a seizure, citation, prosecution, medical
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care, records dispute, or refusal to investigate into a generalized due-process claim without plausibly
alleging the elements of the specific constitutional theory that fits the alleged conduct.
Here, Plaintiff fails to state a cognizable claim. Count IV alleges “conspiracy” and
“obstruction” based on delayed or incomplete records, refusal to provide video, and alleged efforts
to deter Plaintiff from challenging the criminal allegations. Doc. 26 at ¶¶ 77–82. Count V alleges
“retaliation,” “due process,” and “conspiracy” based on allegedly fabricated allegations, false
citations, obstruction of records, and coordination with prosecutors. Id. ¶¶ 83–85. Count VI alleges
“continuing harm” and “deliberate indifference” based on ongoing harm from the emergency-room
encounter. Id. ¶¶ 86–89. Counts IV and V do not identify the constitutional amendment or federal
right that each defendant allegedly violated. Count VI references the Fourteenth Amendment, but
that general reference does not identify the specific constitutional right at issue or the theory under
which Plaintiff seeks relief. Plaintiff does not allege whether Count VI is based on procedural due
process, substantive due process, equal protection, or some other Fourteenth Amendment theory,
nor does she plead facts satisfying the elements of any such claim.
The Court must analyze § 1983 claims under the specific constitutional provision that applies
to the alleged conduct. Plaintiff’s references to “due process,” “retaliation,” “conspiracy,” and
“deliberate indifference” do not allow the Court to determine whether she intends to assert a Fourth
Amendment claim, a First Amendment claim, a procedural-due-process claim, a substantive-due-
process claim, or some other constitutional theory. Although the Court liberally construes pro se
pleadings, it may not assume the role of advocate, supply missing factual allegations, or construct
legal theories for a plaintiff. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Whitney v. New
Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). The Court therefore will not guess which constitutional rights Plaintiff
intended to assert or recast her factual allegations into claims she did not plead.
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Because Counts IV, V, and VI do not identify a specific constitutional right with sufficient
clarity or connect each defendant’s conduct to a violation of that right, the undersigned recommends
dismissal of those claims.
c) 	Counts IV, V, and VI Also Fail Under Rule 8
Counts IV, V, and VI also fail to satisfy Rule 8. Rule 8 requires a complaint to contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). This requirement exists to give each defendant fair notice of the claims asserted and the
grounds on which they rest. In a § 1983 case involving multiple defendants, this notice requirement
is especially important. The complaint must make clear “exactly who is alleged to have done what to
whom,” so that each defendant has fair notice of the basis of the claim against him or her, as
distinguished from collective allegations. Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).
See also Pahls v. Thomas, 718 F.3d 1210, 1225–26 (10th Cir. 2013); Gray v. Univ. of Colo. Hosp. Auth.,
672 F.3d 909, 921–22 (10th Cir. 2012). Put differently, a § 1983 complaint must isolate the allegedly
unconstitutional acts of each defendant; otherwise, the defendants have no way of knowing what
particular unconstitutional acts they are alleged to have committed. Gray, 672 F.3d at 921 n.9.
Counts IV, V, and VI do not provide that notice. Count IV alleges that “KUHA and
KUPD” delayed, restricted, or provided incomplete responses to records requests; that
KUHA/KUMC personnel and KUMC Police discouraged Plaintiff from challenging the criminal
allegations; that KUHA/KUMC personnel refused to investigate; and that “Defendants”
coordinated to obstruct access to evidence and conceal misconduct. Doc. 26 at ¶¶ 77–82. Count V
similarly alleges that “Defendants” fabricated allegations, issued false citations, obstructed access to
records, and coordinated with prosecutors. Id. ¶¶ 83–85. Count VI alleges “continuing harm” and
“deliberate indifference” based on the emergency-room encounter, the criminal allegations, and the
failure to correct medical records. Id. ¶¶ 86–89. These allegations rely on group labels and legal
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conclusions rather than identifying which defendant took which action, when the action occurred,
and how that action violated a specific federal right.
This is not enough under Rule 8. Labels such as “conspiracy,” “obstruction,” “retaliation,”
“due process,” “deliberate indifference,” and “continuing harm” do not give fair notice without
supporting factual allegations tied to each defendant. See Robbins, 519 F.3d at 1250; Pahls, 718 F.3d
at 1225–26. And although Plaintiff proceeds pro se, the Court may not assume the role of advocate,
supply missing facts, or construct claims on her behalf. Hall, 935 F.2d at 1110; Whitney, 113 F.3d at
1175; Garrett, 425 F.3d at 840.
The Rule 8 defect is particularly significant because Plaintiff was already given an
opportunity to amend to cure similar pleading deficiencies. See Guinn v. Jeffco Combined Cts., 537 F.
App'x 790, 793–94 (10th Cir. 2013) (affirming dismissal of pro se complaint where plaintiff failed to
cure Rule 8 deficiencies after being given an opportunity to amend). The District Judge allowed
amendment because Plaintiff’s objection to the prior Report and Recommendation identified more
specific actions by individual defendants and suggested that she might be able to plead actionable
claims with greater clarity. But Counts IV, V, and VI still do not clearly identify the constitutional
right at issue or the specific conduct by each defendant that allegedly violated that right.
Accordingly, the undersigned recommends dismissal of Counts IV, V, and VI under Rule 8
as an independent basis for dismissal.
c. 	State Law Claims
The second amended complaint references the Kansas Act Against Discrimination and
records requests under KORA, and it includes allegations that could be construed as state-law
negligence, medical-malpractice, or defamation.1 See id. ¶¶ 9, 50, 77. But when all federal claims are
1 To the extent Plaintiff intended to assert a claim under HIPAA, that claim also fails because HIPAA does
not create a private right of action for alleged disclosures or mishandling of medical information. See
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010).
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dismissed early in the case, the ordinary course is to decline supplemental jurisdiction over remaining
state-law claims. See 28 U.S.C. § 1367(c)(3); Johnston v. Prairie View, Inc., No. 19-2041-HLT, 2020 WL
2025499, at *10 (D. Kan. Apr. 27, 2020); see also Thompson v. Com. Bancshares Inc., No. 25-1295-KHV,
2026 WL 328957, at *1 (D. Kan. Feb. 6, 2026) (adopting R&R and declining to exercise
supplemental jurisdiction when all federal claims were dismissed).
The undersigned therefore recommends that the District Judge decline to exercise
supplemental jurisdiction over any remaining state-law claims and dismiss those claims without
prejudice.
IV. 	Conclusion
For the reasons explained above, the undersigned recommends dismissal of Plaintiff’s
second amended complaint. Plaintiff’s federal claims are untimely because they arise from events
occurring in May 2023 or, at the latest, the disposition of her criminal case in August 2023, but
Plaintiff did not file this action until December 2025. Plaintiff’s allegations do not support tolling.
Alternatively, Plaintiff’s statutory claims fail for the reasons explained above, and her § 1983 claims
fail because she does not identify a specific constitutional right, connect each defendant’s conduct to
a violation of that right, or satisfy Rule 8.
Accordingly, the undersigned recommends that Plaintiff’s federal claims in the second
amended complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii). To the extent the second
amended complaint asserts any state-law claims, the undersigned recommends that the District
Judge decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) and dismiss those claims
without prejudice.
IT IS THEREFORE RECOMMENDED that Plaintiff’s second amended complaint
(Doc. 26) be dismissed. Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and D. Kan. Rule
72.1.4, Plaintiff shall have fourteen days after service of a copy of these proposed findings and
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recommendations to serve and file written objections with the District Judge assigned to this case.
Plaintiff’s failure to file timely and specific objections will bar appellate review of the proposed
findings of fact, conclusions of law, and recommended disposition. See Moore v. United States, 950
F.2d 656 (10th Cir. 1991).
IT IS SO RECOMMENDED.
Dated June 4, 2026, at Wichita, Kansas.
/s/ B ROOKS S EVERSON
Brooks G. Severson
United States Magistrate Judge
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