Hazelrigg v. State of Kentucky et al

Filing 13

MEMORANDUM OPINION & ORDER: (1) Pla's 10 MOTION for Leave to Proceed in forma pauperis is DENIED as MOOT. (2) Hazelrigg's 1 Complaint is DISMISSED WITH PREJUDICE. (3) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the Dfts. Signed by Judge Joseph M. Hood on July 3, 2013. (AWD) cc: Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

JON MICHAEL HAZELRIGG,

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Plaintiff
v.
STATE OF KENTUCKY, ET AL.,
Defendants
***

***

Civil Action No.
5:13-cv-148-JMH
MEMORANDUM OPINION
and ORDER

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***

Plaintiff David M. Hazelrigg, who lists his address as 143
Stoney Point Road, Paris, Kentucky, has filed this 42 U.S.C. § 1983
civil rights action against the State of Kentucky and James
Ockerman Hazelrigg. Because Hazelrigg is appearing without an
attorney, the Court holds his complaint to a less stringent
standard than one drafted by attorneys.

Burton v. Jones, 321 F.3d

569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th
Cir. 1999).
Pursuant to

Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)

(per curiam), district courts are permitted to conduct a limited
screening

procedure

and

complaint

filed

a

by

to

dismiss,

non-prisoner

sua
if

it

sponte,
appears

a

fee-paid
that

the

allegations are “totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.”
Apple, 183 F.3d at 479 (citing Hagans v. Lavine, 415 U.S. 528,
536-37 (1974)). Dismissal on a sua sponte basis is also authorized

where the asserted claims lack “legal plausibility necessary to
invoke federal subject matter jurisdiction.”

Id. at 480; see also

Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall,
898 F.2d 1196 (6th Cir. 1990).

Because Hazelrigg’s claims are

patently unsubstantial and/or frivolous, his complaint will be
dismissed with prejudice. Hazelrigg’s pending motion to proceed in
forma pauperis [R. 10] will be denied as moot.
ALLEGATIONS OF THE COMPLAINT
Hazelrigg has filed a three-page, handwritten complaint [R. 1]
in which he alleges that in 2010, his brother, James Ockerman
Hazelrigg, and the state of Kentucky caused him to be involuntarily
placed in various state and privately operated hospitals; that the
conditions in some or all of those facilities were deplorable; that
he was denied food for seventy days; and that while he was confined
in those facilities, his religious rights were violated.
pp. 1-3].

[R. 1,

Hazelrigg has attached as exhibits numerous medical

records documenting the medical treatment has received from various
providers between 2006 and 2013.

[R. 3, 4, and 5].1

In a

supplemental filings, Hazelrigg states:

1

According to the March 6, 2013, letter from Jeffrey J.
Green, M.D., Hazelrigg sustained serious bodily injuries in a motor
vehicle accident in 2006, and, as a result of his injuries,
Hazelrigg has taken narcotic pain medications which, if not
“tapered” properly, will cause him to experience serious and
debilitating withdrawal symptoms. [R. 4-1, p. 7]
2

No one should have to endure what my brother and this
state put me through in 2010 [.] All I did was quit
drinking is that insane or what [?] You have to taper
down on most things that effect [sic] your body. No man
should have to go through what I did [.]
Only in
Kentucky.
[R. 4, p. 1].
Broadly

construing

Hazelrigg’s

claims

challenging

his

involuntary placement in various hospitals, Hazelrigg appears to
allege that the defendants violated his right to due process of law
in violation of the Fourteenth Amendment of the U.S. Constitution.
Hazelrigg’s claims challenging the conditions of the state-operated
hospitals in which he was confined also fall under the Fourteenth
Amendment of the U.S. Constitution, and his claims alleging the
denial of his religious rights fall under the First Amendment of
the U.S. Constitution.

Hazelrigg seeks unspecified compensatory

damages and a jury trial.

[R. 1, p. 3].2
DISCUSSION

The Court must dismiss Hazelrigg’s claims for three reasons.
First, Hazelrigg has named the state of Kentucky as one of two
defendants, but the state of Kentucky enjoys sovereign immunity

2

In his original complaint, Hazelrigg states:

“I feel I should be paid for the denegration [sic] of
myself and missue [sic] of doctors authority was cruel
and unusual punishment please give me clemensy [sic] from
house bill owe [word illegible] so I can be out of pain
for my trial!!!”
[R. 1, p. 3].
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from suits demanding monetary damages.

The Eleventh Amendment,

which prohibits federal courts from entertaining suits by private
parties against the states, provides:
The Judicial power of the United
construed to extend to any suit
commenced or prosecuted against one
by Citizens of another State, or by
of any Foreign State.

States shall not be
in law or equity,
of the United States
Citizens or subjects

U.S. Const. Amend. XI.
Under the Eleventh Amendment, sovereign immunity protects both
a state and an agency of a state from a suit in federal court for
monetary damages.

Alden v. Maine, 527 U.S. 706, 713 (1999); see

also Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Edelman v.
Jordan, 415 U.S. 651 (1974) (the Eleventh Amendment precludes
actions in which the state is directly named as a party).

There is

no suggestion that Congress has abrogated Kentucky’s Eleventh
Amendment immunity for claims such as those in this case, or that
the state of Kentucky has consented to be sued by Hazelrigg.
Therefore, under the framework of Apple v. Glenn, Hazelrigg’s
claims against Kentucky lack legal plausibility, are frivolous, and
must be dismissed.

See Cudejko v. Goldstein, 22 F. App'x. 484, 485

(6th Cir. 2001) (affirming district court’s dismissal of patently
insubstantial claims under the authority of Apple v. Glenn).
Second,

Hazelrigg

has

named

his

brother,

James

Okerman

Hazelrigg, as a defendant to this proceeding, but he alleges no
facts suggesting or indicating that James Okerman Hazelrigg’s

4

alleged actions qualified as him as a “state actor.”

In order to

state a claim for relief in a § 1983 action, a plaintiff must
establish that (1) he or she was deprived of a right secured by the
Constitution or laws of the United States, and (2) the alleged
deprivation was committed by a person acting under color of state
law.

American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40,

49–50

(1999);

Hahn

v.

Star

Bank,

190

F.3d

at

717.

“[T]he

under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful
[.]” American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. at 50
(quotation marks and citations omitted).
The Sixth Circuit applies a three-part test to determine if
private conduct is fairly attributable to the state:
The public function test requires that the private entity
exercise powers which are traditionally exclusively
reserved to the state . . .. The state compulsion test
requires proof that the state significantly encouraged or
somehow coerced the private party, either overtly or
covertly, to take a particular action so that the choice
is really that of the state. Finally, the nexus test
requires a sufficiently close relationship (i.e., through
state regulation or contract) between the state and the
private actor so that the action taken may be attributed
to the state.
Tahfs v. Proctor, 316 F.3d 584, 591 (6th Cir. 2003) (quoting
Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.1995)).
In his complaint, Hazelrigg expresses anger that his brother
was allegedly instrumental in having him confined in various
medical facilities in 2010, but Hazelrigg fails to allege facts

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suggesting that James Ockerman Hazelrigg’s alleged actions, even if
true, constituted state action as defined under the three tests set
forth above.

Such action, even in true, would implicate private

action, not state action.
Based on Hazelrigg’s factual allegations, or lack thereof as
to

any

possible

state

action

on

the

part

of

James

Ockerman

Hazelrigg, the Court determines that even if Hazelrigg’s claims are
true, Defendant James Ockerman Hazelrigg was acting only in his
private capacity at the relevant times in 2010, and, thus, does not
qualify as a state actor under § 1983.

Accordingly, Jon Michael

Hazelrigg’s § 1983 claims against James Ockerman Hazelrigg will be
dismissed because they lack legal plausibility and are frivolous.
See Hassink v. Mottl, 47 F. App’x 753, at *1-2 (6th Cir. 2002)
(affirming the district court’s dismissal of the plaintiff’s claims
seeking monetary damages from his attorney and a bail bondsman
because they were not state actors who could be sued under § 1983,
and because under Apple v. Glenn, the plaintiff’s claims were so
attenuated that the district court lacked jurisdiction over them).
CONCLUSION
Accordingly, it is ORDERED that:
(1)

Plaintiff Jon Michael Hazelrigg’s motion to proceed in

forma pauperis [R. 10] is DENIED as MOOT.
(2)

Hazelrigg’s Complaint [R. 1] is DISMISSED WITH PREJUDICE.

(3)

Judgment shall be entered contemporaneously with this
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Memorandum Opinion and Order in favor of the defendants.
This the 3rd day of July, 2013.

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