Gueye v. Richards et al

Filing 5

MEMORANDUM OPINION & ORDER: 1) Clerk shall AMEND the CM/ECF sheet to reflect "Boone County Correctional Facility" is the "Boone County Jail"; the name of "Judge Moore" is "Charles Moore, Judge, Boone District Court "; "Judge Smith" is "Jeffrey Smith, Judge, Boone District Court". 2) The claims asserted against Richards, Sieve, Hamilton County Court of Common Pleas, Division of Domestic Relations are DISMISSED WITH PREJUDCE. 3) The claims asserted against Boyer, Boone County Prosecutor; Boone Co. Prosecutor's Office; Boone District Court; Charles Moore, Judge, Boone County District Court; and Judge Jeffrey Smith, Boone County Attorney are DISMISSED WITHOUT PREJUDIC E. 4) The claims against Boone County Sheriff's Office and Boone County Sheriff's Officer "Heiney or whatever his name is" are DISMISSED WITH PREJUDICE. 5) Gueye's claims under Freedom of Information Act are DISMISSED WITH PREJUDICE. 6) Gueye's claims under 28 U.S.C. § 1651 are DISMISSED WITH PREJUDICE. 7) Court will enter judgment. 8) This proceeding is DISMISSED and STRICKEN from the docket. Signed by Judge David L. Bunning on 10/21/2015.(TJZ)cc: COR, Amar Gueye via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
AMAR GUEYE,

CIVIL ACTION NO. 15-178-DLB

Plaintiff,
V.
JEREMY RICHARDS, et al.,

MEMORANDUM OPINIOIN
AND ORDER

Defendants.
****

****

****

****

INTRODUCTION
Plaintiff Amar Gueye has filed a pro se civil rights complaint in which he asserts
claims under 42 U.S.C. § 1983 against various Kentucky and Ohio state court officials,
correctional officers, and court systems in both states.1 [R. 2] Gueye’s claims stem from
a domestic relations proceeding pending in Hamilton County, Ohio, and from a pending
criminal proceeding in the Boone County, Kentucky District Court, in which he is the
defendant. By separate Order, the Court has granted Gueye pauper status in this

1

The named defendants are: (1) Jeremy Richards, Magistrate Judge, Hamilton County, Ohio, Court of
Common Pleas, Division of Domestic Relations; (2) John Sieve, Senior Judge, Hamilton County, Ohio,
Court of Common Pleas, Division of Domestic Relations; (3) the Hamilton County, Ohio, Court of
Common Pleas, Division of Domestic Relations; (4) Officer “Heiney,” Boone County Sheriff’s Office; (5)
the Boone County Sheriff’s Department; (6) Deputy Bolton, Boone County Sheriff’s Department; (7) the
Boone County Jail; (8) Andrew Boyer, Boone County Prosecutor; (9) the Boone County Prosecutor’s
Office; (10) the Boone County District Court; (11) Charles Moore, Judge, Boone County District Court;
and (12) Jeffrey Smith, Judge, Boone County District Court.
As Gueye has incorrectly identified the Boone County Jail as the “Boone County Correctional Facility,”
the Clerk of the Court will be instructed to list the name of that defendant as the “the Boone County Jail.”
Further, the Court takes judicial notice of the fact that the name of Defendant “Judge Moore” of the Boone
County District Court is “Charles Moore,” and that the name of Defendant “Judge Smith,” of the Boone
County District Court, is “Jeffrey Smith.” The Clerk of the Court will also be instructed to make those name
changes on the CM/ECF cover sheet.

proceeding.
The Court conducts a preliminary review of Gueye’s § 1983 complaint because
he asserts claims against government officials, and because he has been granted in
forma pauperis status in this action. 28 U.S.C. §§ 1915(e)(2); 1915A. In such cases, a
district court must dismiss any action which (i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. Id.
Because Gueye is proceeding without an attorney, the Court liberally construes
his claims and accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, even
reviewing Gueye’s § 1983 claims under this liberal pleading standard, the Court will
dismiss all claims against all of the named defendants.
ALLEGATIONS OF THE § 1983 COMPLAINT
Based on the allegations set forth in Gueye’s complaint and publically available
information obtained from the Office of the Boone County District Court, the Court has
constructed the following time-line of events relevant to this § 1983 action.
Gueye alleges that he filed a police report charging his former girlfriend2 with
destroying his property, and that in response, she apparently obtained an Emergency
Protective Order/Domestic Violence Order (“EPO/DVO”) against him in the Hamilton
County, Ohio, Court of Common Pleas, Domestic Relations Division (“the Ohio
Domestic Relations Proceeding”). [R. 2, pp. 2-3] Gueye alleges that Defendant Jeremy
Richards, whom he identifies as a Magistrate Judge for the Hamilton County Court of
2

Gueye does not identify this woman by name; he merely describes her as his “mentally unstable”
and/or his “mentally ill Ex-Girl-Friend.” [R. 2, p. 2; p. 4]
2

Common Pleas, Domestic Relations Division, proposed a “voluntary mutual agreement,”
pursuant to which Gueye and his former girlfriend would stay away from each other.
Gueye states that he signed the “voluntary mutual agreement” but that his former
girlfriend continued to call him on numerous occasions. [Id., p. 3]
Gueye contends that Magistrate Judge Jeremy Richards “…is attempting to use
bias and prejudice methods to incriminate Plaintiff who has been contacted on a weekly
basis by his mentally unstable Ex-Girl-Friend.” [Id.] Gueye alleges that he filed a motion
in the Ohio Domestic Relations Proceeding asking Magistrate Judge Jeremy Richard to
recuse himself; that Richards refused to do so. Gueye further alleges that Senior Judge
John Sieve “… supported all the misconducts, deliberate legal errors and denied
Plaintiff [sic] motion to terminate the agreement he previously signed….” [Id., p. 4]
Unhappy with Judge Seive’s response, Gueye alleges that he filed a request with the
United States Department of Justice, asking that it investigate both Richards and Seive.
On September 17, 2015, Gueye was charged in the Boone District Court (in
Boone County, Kentucky) with violating a foreign EPO/DVO, a misdemeanor offense.
Commonwealth of Kentucky vs. Amar C. Gueye, No. 15-M-01985 (Judge Jeffrey Smith,
presiding) (“the Kentucky Criminal Case”). It appears that Gueye was arrested on that
date and placed in the Boone County Jail located in Burlington, Kentucky, but that he
was released the next day upon posting bond. It is unclear if Gueye has counsel in the
Kentucky Criminal Case, but the docket sheet of that case reflects that a jury trial before
Judge Jeffrey Smith is scheduled for December 16, 2015.3
3

The docket sheet reveals that a “Motion to Dismiss” was filed on September 24, 2015, and that some
activity transpired on October 8, 2015, during the Boone District Court’s motion hour. Gueye alleges that
he filed the Motion to Dismiss in that case (indicating that is proceeding pro se in the Kentucky criminal
3

In his § 1983 complaint, Gueye alleges that the EPO/DVO issued in the Ohio
Domestic Relations Proceeding was without basis or justification, and that based on the
allegations of a “mentally unstable woman,” he was wrongfully charged in the Kentucky
Criminal Case with violating the terms of the EPO/DVO.4 [Id., p. 4]

Gueye claims that

he has neither committed an act of domestic violence nor violated an EPO/DVO, and
that he has been maliciously prosecuted and falsely imprisoned. Gueye contends that
he has been subjected to “cruel treatment” and “cruel and unusual punishment;” that he
has been retaliated against based upon his “past legal actions;” that he is being denied
information to which he is entitled under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552; and that the defendants have violated his rights guaranteed under the
Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution. [Id., pp. 4-5]
Gueye states that he filed this § 1983 action to obtain a remedy for the alleged
judicial errors committed in both the Ohio Domestic Relations Proceeding and in the
Kentucky Criminal Case, alleging that he is “...entitled to an opportunity to show that his
State arrest and incarceration were illegal and invalid.” [Id., pp. 1-2]

Gueye also

contends that this Court can order relief under the All Writs Act, 28 U.S.C. § 1651. [Id.,
p. 1].

case), but states that he has not received a response to this motion. [R. 2, p. 3]
4

Gueye alleges that in both proceedings, the prosecutors:
steadfastly attempt to use the misrepresentation of a mentally [sic] woman to wrongfully
arrest and incarcerate an innocent black Muslim, charge him with an excessive bond,
denied him Due process, a fair and speedy dismissal of the wrongful charges and the
harm to cause Plaintiff the unnecessary delay to complete his J.D. Program and to make
a living.

[R. 2, p. 2]
4

Gueye further alleges that his confinement in the Boone County Jail caused him
to suffer humiliation and the loss of his job; that he was placed in a dirty cell with a
broken sink and was unable to practice his Muslim religion; that he was denied the right
to contact his attorney; that Deputy Bolton of the Boone County Jail “wantonly stole” his
cell phone charger after “illegally searching Plaintiff’s bag;” and that he was subjected to
the “vicious denial of treatment by the nurses of the Boone County Correction Facility.”
[Id., p. 4]
Gueye seeks various forms of relief. He requests an order which: (1) directs the
release of all records between Magistrate Judge Jeremy Richards and Gueye’s former
girlfriend in the Ohio Domestic Relations Proceeding, as well as all records “of his
argument” in both the Ohio Domestic Relations Proceeding and the Kentucky Criminal
Case pursuant to the FOIA; (2) expunges his criminal record; (3) awards him $5 million
in damages, including the cost of “commuting interstate…to conduct his hearings;” (4)
rescinds all video pre-trial hearings in the Boone District Court “unless a defendant
consents to such an electronic communication with a Boone County District Judge;” (5)
allows all pretrial detainees to speak to an attorney “at least once a day and free of
charge;” and (6) requires “Kentucky Law Enforcers” to obtain a warrant from an official
in the state where an EPO/DVO was issued before arresting anyone for violating an
EPO/DVO. [Id., p. 5]
DISCUSSION
1. Claims Against Magistrate Judge Jeremy Richards; Senior Judge
John Sieve; and the Hamilton County Court of Common Pleas,
Division of Domestic Relations (“the Ohio Defendants”)
Gueye asserts claims against the Ohio Defendants in connection with events that
5

allegedly transpired during the Ohio Domestic Relations Proceeding, but his claims are
defective because this Court lacks personal jurisdiction over the Ohio Defendants. A
plaintiff must plead facts establishing personal jurisdiction over the defendants he
names, and the plaintiff has the burden of making at least a prima facie showing of
personal jurisdiction. See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149
(6th Cir. 1997). “Without personal jurisdiction over an individual . . . a court lacks all
jurisdiction to adjudicate that party’s right, whether or not the court has valid subject
matter jurisdiction.” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991).
A defendant must have purposefully established minimum contacts within the forum
State before personal jurisdiction will be found to be reasonable and fair. International
Shoe Co. v. Washington, 326 U.S. 310, 316-19 (1945); see also Halderman v.
Sanderson Forklifts Co., 818 S.W.2d 270, 274 (Ky. App. 1991).
To establish minimum contacts, a plaintiff must establish that the defendant
should reasonably anticipate being brought into court in the forum State because he
purposefully availed himself of the privilege of conducting activities there. Id.; see also
Southern Machine Co. v. Mohasco Indus., 401 F.2d 374, 380 (6th Cir. 1968). Put
another way, “the relevant inquiry is whether the facts of the case demonstrate that the
non-resident defendant possesses such minimum contacts with the forum state that the
exercise of jurisdiction would comport with ‘traditional notions of fair play and substantial
justice.’” Theunissen v. Matthews, 935 F.2d 1454, 1459-50 (6th Cir. 1991) (citations
omitted).
Gueye has not established personal jurisdiction over any of the Ohio Defendants.
Jeremy Richards and John Sieve presumably reside and work in Hamilton County,
6

Ohio, and the claims against them arose out of conduct occurring in an Ohio state court,
(specifically, the Hamilton County Court of Common Pleas, Division of Domestic
Relations), not from activities in Kentucky. To the extent that Gueye asserts claims
against “the Hamilton County Court of Common Pleas, Division of Domestic Relations,”
he clearly has named an entity that is located in Ohio, not Kentucky. Hasan v. Waxxis
Inv. N.V., 865 F.2d 258, 1988 WL 134513, at *1 (6th Cir. 1988) (“[T]he plaintiff in a civil
action has the duty to state the grounds upon which the jurisdiction of the court
depends.”); Fed. R. Civ. P. 8(a)(1); Walls v. Waste Resource Corp., 761 F.2d 311, 317
(6th Cir. 1985).
Finally, to the extent that Gueye challenges the legality and/or the validity of the
EPO/DVO entered in the Ohio Domestic Relations Proceeding, he is free to pursue
such challenges within the Ohio court system, through an appeal or other authorized
mechanism, but he cannot collaterally challenge an Ohio court order by filing a § 1983
civil rights action in federal court in Kentucky. Accordingly Gueye’s claims against
Magistrate Judge Jeremy Richards, Senior Judge John Sieve, and the Hamilton County
Court of Common Pleas, Division of Domestic Relations, will be dismissed for lack of
personal jurisdiction.
2. Claims Against Andrew Boyer, Boone County Prosecutor; the
Boone County Prosecutor’s Office; the Boone County District
Court; Charles Moore, Judge, Boone County District Court; and
Jeffrey Smith, Judge, Boone County District Court (“the Kentucky
Defendants”)
In his § 1983 complaint, Gueye challenges numerous aspects of the Kentucky
Criminal Case, which, as noted, is pending in the Boone District Court.

Gueye’s

allegations against Defendants Andrew Boyer (Boone County Attorney/prosecutor),
7

Charles Moore (Judge), and Jeffrey Smith (Judge) are devoid of any specific facts
which identify or describe the unconstitutional actions allegedly taken by any of these
defendants. Gueye appears to have named these defendants only because they have
been, or may be in the future, involved in some official capacity in his criminal
prosecution.

Gueye alleges no facts that support his broad allegations that they

violated any of his federal constitutional rights. Gueye instead generally alleges that he
was wrongfully charged in Kentucky with violating an Ohio EPO/DVO, which he also
alleges was issued without justification by the Magistrate Judge in Hamilton County
Court of Common Pleas, Domestic Relations Division.
For a case to survive a screening under § 1915, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570).

As the Supreme Court has explained, “[a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Id. (citing Twombly, 550 U.S. at 555); see also Association of Cleveland Fire Fighters v.
City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). In his § 1983 complaint,
Gueye alleges in vague and conclusory language that he is innocent of any criminal
charge, and that he has been denied due process in the Kentucky Criminal Case, but
he alleges no specific facts to support his claim that Boyer, Moore, or Smith, violated his
rights guaranteed under the Fifth and Fourteenth Amendments of the U.S. Constitution.5
In short, Gueye offers nothing but labels and conclusions, which are insufficient to
5

The Fourteenth Amendment’s guarantee of due process applies to persons acting under color of state
law, whereas the Fifth Amendment’s guarantee of due process applies to persons acting under color of
federal law. As the defendants in this proceeding are alleged to be state actors, Gueye’s claims alleging
the denial of due process fall under the Fourteenth Amendment of the U.S. Constitution.
8

support his claims under § 1983.
Further, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971), precludes consideration of Gueye’s § 1983 claims
against the Kentucky Defendants. Under the Younger doctrine, a federal court must
decline to interfere with pending state proceedings that involve important state interests
unless extraordinary circumstances are present. Younger, 401 U.S. at 44-45. “Younger
abstention applies when the state proceeding (1) is currently pending, (2) involves an
important state interest, and (3) affords the plaintiff an adequate opportunity to raise
constitutional claims.” Carroll v. City of Mount Clemens, 139 F.3d 1072, 1074 (6th Cir.
1998); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432
(1982); Hayse v. Wethington, 110 F.3d 18, 20 (6th Cir. 1997).
Each of the three factors that support abstention under Younger are present
here. First, the Kentucky Criminal Case is currently pending in a Kentucky state court.
Second, the Kentucky Criminal Case implicates an important state interest--a criminal
prosecution--an area in which federal courts traditionally decline to interfere. See
Younger, 401 U.S. at 43–45; Leveye v. Metropolitan Public Defender’s Office, 73 F.
App’x 792, 794 (6th Cir. 2003) (holding that state court criminal proceedings traditionally
implicate an important state interest) (citing Younger, 401 U.S. at 43–45). Third, no
evidence exists that the Kentucky Criminal Case cannot provide an opportunity for
Gueye to raise his various constitutional claims challenging his prosecution.
Younger abstention is not a question of jurisdiction, but is rather based on “strong
policies counseling against the exercise of such jurisdiction.” Ohio Civil Rights Comm’n
v. Dayton Christian Sch., Inc., 477 U.S. 619, 626, 106 S. Ct. 2718, 91 L.Ed.2d 512
9

(1986).

That analysis clearly applies in this case:

if this Court were to entertain

Gueye’s § 1983 claims seeking both damages from the Kentucky Defendants and
various forms of injunctive relief, it would be impermissibly interfering with the Kentucky
Criminal Case, which is currently pending in the Boone District Court.

This Court

declines to take such action and effectively interfere with a criminal prosecution pending
in a Kentucky state court. See Carroll, 139 F.3d at 1074-75 (“When a person is the
target of an ongoing state action involving important state interests, a party cannot
interfere with the pending state action by maintaining a parallel federal action involving
claims that could have been raised in the state case.”); Coles v. Granville, 448 F.3d
853, 865 (6th Cir. 2006); see also Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir.
2006); Sun Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 68-42 (6th Cir. 1990).
Abstention is thus appropriate in this case with respect to Gueye’s Fourteenth
Amendment claims seeking both money damages and injunctive relief. See Carroll, 139
F.3d at 1075 (holding that Younger abstention may be applied where the plaintiff seeks
both declaratory relief and damages). A district court deciding to abstain under Younger
has the option of either dismissing the case without prejudice or holding the case in
abeyance. Coles, 448 F.3d at 866 (citing Carroll, 139 F.3d at 1075).
In conformity with the decision to abstain, this Court will not interfere with the
procedural or discovery processes in the Kentucky Criminal Case. If Gueye wishes to
obtain specific documents related to the Ohio Domestic Relations Proceeding, he is free
to file the appropriate motion in that Ohio proceeding. To the extent that Gueye claims
that certain documents in the Ohio case relate to his criminal prosecution in Kentucky,
he is free to file a motion requesting discovery material from the prosecutor/County
10

Attorney in the Kentucky Criminal Case. The same applies with respect to Gueye’s
complaint about the legality of video-court appearances in the Kentucky Criminal Case;
he is free to challenge that procedure or practice in the Kentucky Criminal Case. This
Court will not inject itself into either the procedural or discovery processes used by a
state court in a criminal proceeding.
For these reasons, the Court will dismiss Gueye’s § 1983 claims against Andrew
Boyer, Boone County Prosecutor; the Boone County Prosecutor’s Office; the Boone
County District Court; Charles Moore, Judge, Boone County District Court; and Jeffrey
Smith, Judge, Boone County District Court; without prejudice.
3. Claims Against the Boone County Sheriff’s Office and the Boone
County Sheriff’s Officer “Heiney”
Gueye identifies one of the defendants as “Boone County Sheriff’s Officer
‘Heiney’ or whatever his name is.” [R. 2, p. 1]

It is not surprising that a pro se plaintiff

may not know the precise name of a law enforcement officer intended to be a defendant
in a civil rights action, but it is surprising that the complaint--even a pro se complaint-contains no information or allegations which describe the alleged unconstitutional
conduct allegedly taken by that law enforcement officer.

In his complaint, Gueye

alleges no facts whatsoever that either mention or even implicate a Boone County
Sheriff’s Officer by the name of “Heiney.” In fact, Gueye alleges no facts whatsoever
involving any officer or other official employed by the Boone County Sheriff’s Office.
Because Gueye has named Officer “Heiney” and the Boone County Sheriff’s
Office as defendants but has alleged no facts pertaining to either of these defendants,
the Court must speculate as to the factual basis of Gueye’s claims against both Officer
11

“Heiney” and the Boone County Sheriff’s Office. A district court should not, however, be
required to guess or speculate about the basis of a plaintiff’s civil rights claim.
Rule 8(a) of the Federal Rules of Civil Procedure states that a complaint must
contain, among other things, “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Admittedly, pro se pleadings must be liberally construed
and held to a less stringent standard than formal pleadings drafted by lawyers, Haines
v. Kerner, 404 U.S. 519, 520 (1972), but as previously explained, to state a claim
sufficient to survive screening, a plaintiff must allege facts which are sufficient to give a
defendant fair notice of the claim. Twombly, 550 U.S. at 555, n. 3; Iqbal, 556 U.S. 662 at
678 (a court need not accept threadbare recitals of the elements of a cause of action
supported by conclusory statements); Harden-Bey v. Rutter, 524 F.3d 789, 796 (6th Cir.
2008) (holding that conclusory allegations of unconstitutional conduct without specific
factual allegations failed to state a claim). Gueye’s claims against these defendants are
completely devoid of content and do not meet that minimal threshold.
Further, the Boone County Sheriff’s Office is not a legal entity amenable to being
sued under 42 U.S.C. § 1983. The Boone County Sheriff’s Office is not a municipality
or independent legal entity; rather, it is merely an adjunct or department of Boone
County, Kentucky, or the Boone County Fiscal Court. See Matthews v. Jones, 35 F.3d
1046, 1049 (6th Cir. 1994) (police departments are not legal entities which may be
sued); Obert v. The Pyramid, 381 F. Supp.2d 723, 729 (W.D. Tenn. 2005) (police
department is not a legally-existing entity); see also De La Garza v. Kandiyohi County
Jail, 18 F. App’x 436, 437 (8th Cir. 2001) (neither a county jail nor a sheriff’s department
is a suable entity); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“[s]heriff’s
12

departments are not usually considered legal entities subject to suit”). Therefore, the
Boone County Sheriff’s Office is not amenable to being sued for § 1983 purposes.
Because Gueye’s § 1983 claim(s) against Officer “Heiney” and the Boone County
Sheriff’s Office are patently deficient, they will be dismissed with prejudice for failure to
state a claim upon which relief can be granted.
4. Claims Against the Boone County Jail and Boone County Deputy
Jailer “Bolton”
Gueye alleges that Boone County Jailer “Bolton” stole his phone charger after
“illegally searching Plaintiff’s drive that carried his Flash Drive with all his intellectual
Properties….” [R. 2, p. 4]

To the extent that Gueye alleges that Bolton stole his

personal property, Gueye is free to pursue a civil claim in state court based on
conversion, but his claim does not pass muster as a § 1983 claim alleging the denial of
his federal constitutional rights, including his right to due process of law.
A plaintiff does not allege a viable due process claim based on either the
negligent deprivation of personal property or the intentional but unauthorized,
deprivation of property, unless state court remedies are inadequate to redress the
wrong. See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part by Daniels
v. Williams, 474 U.S. 327, 328 (1986) (negligent deprivation of personal property);
Zinermon v. Burch, 494 U.S. 113, 127 (1990) (intentional deprivation of personal
property); Hudson v. Palmer, 468 U.S. 517, 531-33 (1984); Geiger v. Prison Realty
Trust, Inc., 13 F. App’x 313, 315-16 (6th Cir. 2001) (finding that the prisoner failed to
allege a due process claim based on the alleged theft of his personal property where he
did not demonstrate that his state court remedies were inadequate). To assert such a
13

claim, the plaintiff must both plead and prove that state remedies for redressing the
wrong are inadequate. See Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir.1999). Here,
Gueye has failed to allege that available state remedies (filing a claim with the Board of
Claims or filing a common law action for conversion) were inadequate to redress his
property deprivation. In the absence of such allegations from Gueye, the Court declines
to reach that conclusion.
Next, Gueye asserts a series of claims challenging what appear to be his one
day and/or one-night confinement in the Boone County Jail. Gueye alleges in cursory
fashion that he was denied his right to practice his Muslim religion; that the nurses
“viciously” denied him medical treatment; and that he was placed in a dirty cell with a
broken sink. [R. 2, p. 4]

However, Gueye’s Eighth and/or Fourteenth Amendment

claims challenging the conditions of his confinement suffer from several fatal defects.
First, as to his claims alleging the denial of his right to exercise his religious
beliefs and the denial of nursing services, Gueye did not allege any facts in support of
these general and conclusory allegations, nor did he identify which officials at the Boone
County Jail allegedly engaged in these unconstitutional actions. Instead, he broadly
stated, in conclusory fashion, that his federal rights were violated. Again, to state a
claim sufficient to survive screening, a plaintiff must allege facts which are sufficient to
give a defendant fair notice of the claim. Twombly, 550 U.S. at 555, n. 3; Iqbal, 556 U.S.
662 at 678. Gueye has not alleged sufficient facts to maintain either an Eighth or
Fourteenth Amendment claim challenging the conditions of his confinement in the
Boone County Jail.

14

Second, to the extent that Gueye complains about his less than desirable
conditions at the Boone County Jail, he states no claim that would warrant either
injunctive relief or the award of damages. Prisons and jails are not required to provide,
nor can prisoners reasonably expect to receive, “the amenities, conveniences and
services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988). “A
broad range of choices that might infringe constitutional rights in a free society fall within
the expected conditions of confinement of those who have suffered a lawful conviction.”
McKune v. Lile, 536 U.S. 24, 36 (2002); see also McNatt v. Unit Manager Parker, No.
3:99-CV-1397, 2000 WL 307000, at *4 (D. Conn. Jan. 18, 2000) (holding that no Eighth
Amendment violation occurred when inmates endured stained, smelly mattresses,
unclean cells, no bedding for six days, no cleaning supplies for six days, no toilet paper
for one day, no toiletries or clothing for six days, no shower shoes, water that did not
function properly, and smaller food portions).
Further, Gueye does not allege that his exposure to these alleged unpleasant
conditions was extensive or prolonged. Given the very limited amount of time that
Gueye was exposed to the conditions alleged in his complaint, he has failed to state a
claim which would entitle him to relief under § 1983. Prisoner complaints alleging only
temporary inconveniences typically do not establish that the alleged conditions fell
beneath the minimal civilized measure of life's necessities as measured by a
contemporary standard of decency. See Rhodes v. Chapman, 452 U.S. 337, 347
(1981); Dellis v. Corr. Corps. of Am., 257 F.3d 508, 511 (6th Cir.2001) (Eighth
Amendment claim not stated when prisoner deprived of lower bunk, subjected to
flooded cell, and deprived of working toilet because prisoner alleged only temporary
15

inconveniences and did not demonstrate that conditions fell beneath minimal civilized
measure of life's necessities); Brodak v. Nichols, 162 F.3d 1161, 1998 WL 553032, *1
(6th Cir. Aug.17, 1998) (inmate who allegedly slept on the floor and was exposed to
overcrowded conditions for 45 days was not deprived of the minimum civilized measure
of life's necessities); Myrick v. Buchanan, 929 F.2d 701, 1991 WL 43926, *1 (6th Cir.
Apr.11, 1991) (inmate's alleged exposure to various unconstitutional jail conditions for
18 days, while unpleasant, did not amount to cruel and unusual punishment).
Finally, in order to state a claim under § 1983, the plaintiff must show that the
alleged violation was committed by a person acting under color of state law. Swiecicki v.
Delgado, 463 F.3d 489, 495 (6th Cir. 2006). However, because a detention center (or a
jail) is not a municipality, but rather a building wherein prisoners are held, it is not a
“person” amenable to suit under § 1983. Hix v. Tenn. Dep’t of Corrs., 196 F. App’x 350,
355–56 (6th Cir. 2006) (collecting cases from other circuits); Johnson v. Blackwelder,
No. 4:08-CV-91, 2009 WL 1392596 * 4 (E.D. Tenn., May 15, 2009); Baker v. Hamblen
County Jail Staff, No. 2:09-CV-135, 2009 WL 2588698, at *2 (E.D. Tenn. Aug.19, 2009)
(holding that prisoner failed to state a claim for relief under § 1983 against jail staff
because the “jail staff” was not a person subject to suit within the terms of § 1983);
Coffey v. Miami County Jail, No. 3:05-CV-383, 2007 WL 316262 * 2 (S.D. Ohio, Jan. 29,
2007).

Accordingly, “the Boone County Jail” is not a “person” under § 1983, and

Gueye’s claims against it fail as a matter of law.
Gueye’s constitutional claims against the Boone County Jail and Boone County
Deputy Jailer “Bolton” will therefore be dismissed with prejudice for failure to state a
claim upon which relief can be granted.
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5. Claims Asserted under FOIA
Gueye also asserts claims under FOIA (5 U.S.C. § 552 et seq.) broadly alleging
that he is entitled to injunctive relief and to documents concerning “law enforcement
investigations or prosecutions.” [R. 2, pp. 2-3].

Gueye’s invocation of the FOIA is

misplaced, however, because that statutory scheme imposes disclosure obligations only
on federal agencies. FOIA “obligates agencies of the United States government to
make their records ‘promptly available to any person,’ save those records specifically
exempt from disclosure.” See 5 U.S.C. § 552(a)(3).” Ehret v. U.S. Dept. of Defense,
No. 1:14-CV-725, 2015 WL 3867765, at *4 (W. D. Mich. June 23, 2015) (emphasis
added). In other words, FOIA authorizes suits against federal agencies, not against
individuals. Comer v. Internal Revenue Service, 831 F.2d 294, 1987 WL 38730, at *1
(6th Cir. Oct. 19, 1987); see also Rimmer v. Holder, 700 F.3d 246, 255 (6th Cir. 2012)
(“FOIA begins with the baseline rule that federal agencies must respond promptly to
requests for records that contain a reasonable description of those records and are
made in accordance with published rules and procedures. 5 U.S.C. § 552(a)(3).”)
(emphasis added).6
Here, Gueye does not name any federal agency as a defendant to this action,
nor does he allege facts involving the actions (or inactions) of any federal agency, so he
fails to state a claim upon which relief can be granted.

Gueye’s FOIA claims will

therefore be dismissed with prejudice for failure to state a claim upon which relief can

6

Further, any claim that is properly asserted against a federal agency under FOIA must be first be
administratively exhausted. Lamb v. Internal Revenue Service, 871 F. Supp. 301, 303 (E. D. Mich. 1994);
Ehret, 2015 WL 3867765, at *5 (“The Freedom of Information Act “requires that an individual exhaust all
administrative remedies before filing a judicial action.” Fields v. Internal Revenue Service, 2013 WL
3353921 at *3 (E.D. Mich., July 3, 2013).”)
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be granted.
6. Request for a Writ of Coram Nobis
Gueye alleges that he is entitled to a writ of coram nobis. [R. 2, p. 1] However,
Gueye asserts no facts whatsoever in support that broad assertion. The writ of error
coram nobis is used to vacate a federal sentence or conviction when a motion under 28
U.S.C. § 2255 is unavailable--generally, when the petitioner has served his sentence
completely and thus is no longer “in custody” as required for § 2255 relief. A federal
court's power to issue a coram nobis writ comes from the All Writs Act, 28 U.S.C. §
1651. Blanton v. United States, 94. F.3d 227, 231 (6th Cir. 1996); United States v.
Morgan, 346 U.S. 502, 506, 74 (1954) (“Since this motion in the nature of the ancient
writ of coram nobis is not specifically authorized by any statute enacted by Congress,
the power to grant such relief, if it exists, must come from the all-writs section of the
Judicial Code”). Gueye does not allege either that he has been convicted of a federal
offense or that he is serving a federal sentence. Therefore, Gueye’s reliance on 28
U.S.C. § 1651 is misplaced and he asserts no grounds entitling him to relief under that
federal statute.
CONCLUSION
Accordingly, the Court being duly advised, IT IS ORDERED as follows:
1.

The Clerk of the Court shall AMEND the CM/ECF cover sheet to reflect

that Defendant “Boone County Correctional Facility,” is the “Boone County Jail;” that the
name of Defendant “Judge Moore” is “Charles Moore, Judge, Boone District Court;” and
that the name of Defendant “Judge Smith” is “Jeffrey Smith, Judge, Boone District
Court.”
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2.

The 42 U.S.C. § 1983 claims asserted by Plaintiff Amar Gueye against

Magistrate Judge Jeremy Richards, Senior Judge John Sieve, and the Hamilton County
Court of Common Pleas, Division of Domestic Relations, are DISMISSED WITH
PREJUDICE.
3.

The 42 U.S.C. § 1983 claims asserted by Gueye against Defendants

Andrew Boyer, Boone County Prosecutor; the Boone County Prosecutor’s Office; the
Boone County District Court; Charles Moore, Judge, Boone County District Court; and
Judge Jeffrey Smith, Boone County Attorney, are DISMISSED WITHOUT PREJUDICE.
4.

The 42 U.S.C. § 1983 claims asserted by Gueye against the Boone

County Sheriff’s Office and the Boone County Sheriff’s Officer “Heiney or whatever his
name is” are DISMISSED WITH PREJUDICE.
5.

Gueye’s claims under the Freedom of Information Act, 5 U.S.C. § 552 et

seq., DISMISSED WITH PREJUDICE.
6.

Gueye’s claims under 28 U.S.C. § 1651 are DISMISSED WITH

PREJUDICE.
7.

The Court will enter an appropriate Judgment.

8.

This proceeding is DISMISSED and STRICKEN from the Court’s docket.

This 21st day of October, 2015.

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