Matthews v. Tobin
MEMORANDUM OPINION & ORDER: (1) pltf's federal claims asserted are DISMISSED WITH PREJUDICE; (2) pltf's claims arising under Kentucky law are DISMISSED WITHOUT PREJUDICE; (3) Court will enter appropriate judgment; (4) this matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 01/24/2012.(RJD)cc: COR,PRO SE PLTF(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
MARY ANN TOBIN,
Civil Action No. 12-12-JMH
Matthews, proceeding without an attorney, has filed a
civil action against defendant Mary Ann Tobin, asserting claims
under the federal constitution and under Kentucky law.
Matthews has paid the filing fee.
doe, from the Bernheim Arboretum and Research Forest located in
Clermont, Kentucky, to the Broadbent Wildlife Sanctuary located
sanctuary at Broadbent in 2002.
Matthews indicates that she had
become “very bonded” to the doe and visited it frequently at
Broadbent where she could no longer do so.
While Tobin has now
allowed Matthews to visit the doe, Matthews complains that the
doe’s living conditions are unacceptable and it is not being
properly cared for.
[R. 1 at 3-6]
Matthews indicates that some
or all of these issues regarding care of the doe have previously
been litigated in the Bullitt County Circuit Court.
[R. 1 at 4,
Matthews contends that Tobin’s actions constitute cruel and
tortious interference with contract under Kentucky law.
Matthews seeks an order permitting her to visit the doe
twice a week and to compel that it be cared for, fed, and
[R. 1 at 18-20]
As a preliminary matter, the plaintiff has filed this suit
in the wrong court.
Matthews’s complaint appears to allege that
under 42 U.S.C. § 1983, and that she tortiously interfered with
a contract between herself and Bernheim Foundation.
§ 1391(b) requires such a complaint to be filed in a judicial
defendants reside in the same state; (2) a substantial part of
defendant resides, if no other district provides venue.
Broadbent’s facility in Irvington, Kentucky, which is also the
city where Tobin resides.
Irvington is located in Breckenridge
County, and hence falls within the Western District of Kentucky.
28 U.S.C. § 97(b).
Section 1391(b) therefore requires that this
action should have been filed in that court.
When a case is filed in the wrong district, the Court has
discretion to either dismiss the case or transfer it to the
28 U.S.C. § 1406(a).
In the present case, the
Court has reviewed the complaint1 and will dismiss the action
because Matthew’s federal civil rights claim fails as a matter
of law and because neither this Court nor the Western District
Matthews alleges that Tobin has subjected her to cruel and
proscription of “Cruel and Unusual Punishments” applies only to
The Supreme Court has repeatedly emphasized that
matter how discriminatory or wrongful.”
American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
A federal court may screen a fee-paid complaint filed by a
non-prisoner plaintiff and dismiss it where its allegations are
insubstantial or its claims are devoid of legal merit or are not
open to reasonable discussion.
Apple v. Glenn, 183 F.3d 477,
479 (6th Cir. 1999).
“the party charged with the deprivation,” is not “a person who
may fairly be said to be a state actor,”
Matthews cannot show a
violation of the Eighth Amendment, and her civil rights claim
fails as a matter of law.
Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982).
Matthews also alleges that Tobin tortiously interfered with
a contract between herself and Bernheim, a claim arising under
However, having determined that her sole federal
claim must be dismissed, Tobin’s pendent state law claim should
also be dismissed without prejudice.
28 U.S.C. § 1367(c)(3);
United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
over the claim under 28 U.S.C. § 1332, as the plaintiff and
Matthews’s state law claim, without prejudice to her right to
assert it in the proper forum.
Accordingly, IT IS ORDERED that:
U.S.C. § 1983 are DISMISSED WITH PREJUDICE.
DISMISSED WITHOUT PREJUDICE.
The Court will enter an appropriate judgment.
This matter is STRICKEN from the active docket.
This the 24th day of January, 2012.
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