Benton v. Kentucky Community and Technical College
Filing
18
MEMORANDUM OPINION & ORDER: 1) 11 MOTION to Dismiss the Complaint is GRANTED; 11 MOTION for Permanent Injunction is DENIED. 2) Federal claims asserted in 1 original complaint and 10 amended complaints are DISMISSED WITH PREJUDICE; claims under state law are DISMISSED WITHOUT PREJUDICE. 3) 14 MOTION to Change Venue/Transfer Complaint is DENIED. 4) Court will enter a judgment w this Order. 5) Court CERTIFIES that any appeal would not be taken in good faith. 6) This matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 9/4/2014.(SCD)cc: COR,Pro Se Pla(via US Mail) Modified on 9/4/2014 (SCD).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID LEWIS BENTON, SR.,
Plaintiff,
V.
KENTUCKY COMMUNITY & TECHNICAL
COLLEGE,
Defendant.
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)
) Civil Action No. 5: 14-42-JMH
)
)
)
MEMORANDUM OPINION
)
AND ORDER
)
)
)
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This matter is before the Court upon the motion of the
defendant,
Kentucky
Community
&
Technical
(“KCTCS”), to dismiss the complaint.
[R. 11]
College
System
Plaintiff David
Lewis Benton, Sr., has filed a response to the motion [R. 13] to
which KCTCS has replied [R. 15].
Each party has also filed a
supplemental reply regarding the issues raised in the motion.
[R. 16, 17]
This matter is therefore ripe for decision.
I
On January 27, 2014, Benton filed suit against KCTCS in the
United
States
Kentucky.
District
Court
for
the
Western
District
of
In his complaint, Benton alleged that he enrolled in
KCTCS in 2006 to study digital production.
At some point in
2009, he was involved in an argument with another student and
was expelled from the school.
Benton stated that he had no
1
prior
violations
of
the
school’s
code
of
conduct.
Without
explanation, Benton contended that his expulsion violated his
civil and educational rights, and sought an apology and $6.5
million in damages.1
filed
on
March
explanation,
federal
7,
that
criminal
[R. 1, pp. 1-3]
2014,
the
Benton
school’s
statutes
and
In an amended complaint
asserted,
conduct
state
again
violated
statutes.
a
without
number
[R. 10]
of
On
February 11, 2014, the Western District transferred this action
to this Court on venue grounds pursuant to 28 U.S.C. § 1406(a).
[R. 4]
Following service of process, KCTCS filed its motion to
dismiss the complaint.
[R. 11]
As grounds for dismissal, KCTCS
contends that Benton’s vague allegations fail to state a claim
upon
which
relief
may
be
granted,
and
that
the
Eleventh
Amendment immunizes it from suit in federal court because it is
a state agency.
[R. 11-1, pp. 9-12]
KCTCS next asserts that
Benton’s claims in this action are functionally identical to
1
Referring to portions of the civil cover sheet filed by
Benton, KCTCS characterizes his claims as arising under 42
U.S.C. § 2000a and § 2000c, and as asserting a class action.
[R. 11-1, p. 3]
But the civil cover sheet is strictly an
administrative tool and is not a “pleading” under Rule 7(a), and
therefore statements contained within it do not constitute part
of the complaint for purposes of a motion to dismiss.
Cf.
Brewster v. Aramark Corp., No. 2:14-CV-273, 2014 WL 3867284, at
*1-2 (S.D. Ohio, Aug. 6, 2014); Miller v. Township of Metamora,
No. CIV. 04-40302, 2006 WL 539560, at *2 (E.D. Mich. March 6,
2006).
2
those he previously asserted in a state court action he filed in
Jefferson
Circuit
Court,
No.
12-CI-006214.
That
action
was
dismissed for failure to state a claim, a decision presently
pending on appeal to the Kentucky Court of Appeals.
p. 3]
[R. 11-1,
Finally, KCTCS notes that since 2011 Benton has filed 33
lawsuits in the state and federal courts against it and other
state agencies and officials, many of which have been dismissed
for
failure
to
state
[R. 11-1, pp. 4-7]
a
claim
or
for
lack
of
prosecution.2
KCTCS seeks dismissal of this action and an
order requiring Benton to pay the full filing fee in any action
he files in the future. [R. 11-1, pp. 12-14]
In
his
four-sentence
response,
Benton
requests
that
the
Court defer ruling upon the motion to dismiss until after he
2
After Benton filed his complaint in this action, he filed nine
more civil actions in the Western District of Kentucky. Benton
v. Kentucky Community & Technical College, No. 3:14-CV-65-JGH
(W.D. Ky. 2014); Benton v. Sheriff’s Civil Processing Dept., No.
3:14-CV-97-JGH (W.D. Ky. 2014); Benton v. Louisville Metro
Police Dept. & Traffic Div., No. 3:14-CV-98-JGH (W.D. Ky. 2014);
Benton v. City Corrections Complex, No. 3:14-CV-99-JGH (W.D. Ky.
2014); Benton v. City of Louisville Family Court Div., No. 3:14CV-263-CRS
(W.D.
Ky.
2014);
Benton
v.
Jefferson
County
Attorney’s Office, No. 3:14-CV-264-CRS (W.D. Ky. 2014); Benton
v. Sherlock, No. 3:14-CV-468-JGH (W.D. Ky. 2014); Benton v.
Houchens, No. 3:14-CV-469-JGH (W.D. Ky. 2014); Benton v.
Commissioner of Social Security, No. 3:14-CV-470-DW (W.D. Ky.
2014).
The first was recently transferred to this Court on
venue grounds.
The Western District has conducted an initial
screening of the next five cases, and all have been dismissed
for failure to state a claim, and include a certification that
any appeal would not be taken in good faith.
Benton has
appealed the dismissal of all five of those actions to the Sixth
Circuit Court of Appeals.
3
submits a “structured” complaint and pertinent evidence, or the
defendant decides to settle the case.3
Benton also asks the
Court to transfer this case back to the Western District because
while
he
located
indicated
in
in
Versailles,
his
complaint
Kentucky,
that
the
the
events
actually occurred in Louisville, Kentucky.
defendant
complained
was
of
[R. 13, pp. 2-3]
II
Having reviewed the parties’ submissions, it is plain that
Benton’s
grounds.
complaint
is
subject
to
dismissal
on
a
number
of
The Court will therefore dismiss Benton’s complaint
and deny his motion to transfer venue, a matter falling within
the Court’s discretion under § 1406(a), as futile.
First,
the
Eleventh
Amendment
specifically
prohibits
federal courts from exercising subject matter jurisdiction over
a suit for money damages brought directly against the state, its
agencies, and state officials sued in their official capacities.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 687-88 (1993); Cady v. Arenac Co., 574 F.3d 334, 342
(6th Cir. 2009).
In addition, states, state agencies, and state
officials sued in their official capacities for monetary damages
3
Because Benton has not filed either a new “structured”
complaint nor any new pertinent evidence in support of his
claims in the five months since he filed his original response,
the Court evaluates KCTCS’s motion to dismiss in light of the
record as it currently stands.
4
are not considered “persons” within the meaning of 42 U.S.C.
§ 1983.
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).
In determining whether a particular entity constitutes an
“arm of the state” for Eleventh Amendment purposes, the Court
must
canvas
applicable
state
law
to
assess
its
degree
of
autonomy from state control, by determining whether the state
would be liable for a judgment entered against it, reviewing
whether the rules which govern its conduct are created by the
state or are promulgated from within, and considering the source
of funding for its operations.
of
Educ.
v.
Doyle,
429
U.S.
Mt. Healthy City Sch. Dist. Bd.
274,
280
(1977);
Cleveland, 173 F.3d 552, 560 (6th Cir. 1999).
by
Kentucky
Kentucky’s
statute,
Ky.
“postsecondary
164.001(16),
and
Rev.
Stat.
education
Kentucky
law
Brotherton
v.
KCTCS was created
164.580,
system,”
Ky.
establishes
is
part
Rev.
that
of
Stat.
“state
institutions of higher education under KRS 164 are agencies of
the state” under Ky. Rev. Stat. 44.073(1).
There is therefore
no question that KCTCS is an arm of the state under the Eleventh
Amendment, and the Court must dismiss Benton’s claims against it
for
lack
of
subject
matter
jurisdiction.
See
McCollum
v.
Owensboro Community & Technical College, No. 4:09CV-121-M, 2010
WL 1742379, at *2 (W.D. Ky. April 29, 2010).
5
Even if Benton could pursue his claims in this Court, they
would fail on other grounds.
predicated
§§ 241,
upon
246,
three
and
Benton’s attempt to assert claims
federal
1038,
criminal
must
fail
statutes,
because
18
only
a
U.S.C.
federal
prosecutor, not a private citizen, may assert such claims.
28
U.S.C. § 547(1); see also Gill v. State of Texas, 153 F. App’x
261, 262-63 (5th Cir. 2005) (“decisions whether to prosecute or
file
criminal
charges
are
generally
within
the
prosecutor’s
discretion, and, as a private citizen, Gill has no standing to
institute a federal criminal prosecution and no power to enforce
a criminal statute.”); Abner v. General Motors, 103 F. App’x
563, 566 (6th Cir. 2004) (finding that the plaintiff could not
initiate
a
federal
criminal
prosecution);
Johnson
v.
Working
America, Inc., No. 1:12CV1505, 2012 WL 3074775, at *2 (N.D. Ohio
July 30, 2012); Ball v. City of Indianapolis, 2014 WL 3673466,
at *8 (7th Cir. 2014).
U.S.C.
§
fiduciary
1109,
under
which
a
Benton’s inexplicable reference to 29
provides
a
tax-qualified
cause
of
retirement
action
plan
against
under
a
the
Employee Retirement Income Security Act, 29 U.S.C. § 1001 et
seq., has no conceivable bearing upon his factual allegations,
and fails to state a claim upon which relief may be granted.
Benton’s attempt to assert claims under 42 U.S.C. §§ 1981
and 1985 must also fail.
His claim under § 1985 fails to state
6
a claim because the statute applies only to conspiracies made
between two or more persons, and Benton alleges no conspiracy
nor
identifies
any
second
party
to
such
a
conspiracy.
Cf.
Dallas v. Holmes, 137 F. App’x 746, 752 (6th Cir. 2005).
His
claim
the
under
§
1981
fails
because
42
U.S.C.
§
1983
is
exclusive remedy for a state actor’s alleged violation of rights
secured under § 1981.
Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 731-33 (1989); McCormick v. Miami Univ., 693 F.3d 654,
658-61 (6th Cir. 2012).
Any claim by Benton under § 1983,
arising out of conduct occurring in Kentucky in 2009, would be
barred
by
the
applicable
one-year
statute
of
limitations.
Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003); Collard
v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990).
Having
determined
that
none
of
Benton’s
federal
claims
survive dismissal, the Court declines to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c).
Mellon
University
v.
Cohill,
484
U.S.
343
See Carnegie–
(1988);
Musson
Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th
Cir. 1996) (noting that “[i]f the court dismisses plaintiff’s
federal
claims
jurisdiction
pursuant
can
never
to
Rule
exist”,
12(b)(1),
and
that
then
“[a]fter
supplemental
a
12(b)(6)
dismissal, there is a strong presumption in favor of dismissing
supplemental claims.”).
7
Finally, the Court declines KCTCS’s invitation to enter a
broad injunction prospectively denying Benton pauper status in
this district.
This case, and its companion Benton v. Kentucky
Community & Technical College, No. 5:14-322-JMH (E.D. Ky. 2014),
were transferred to this Court in light of Benton’s allegation
that he was suing KCTCS in Versailles, Kentucky.
All of the
cases that Benton has previously initiated were filed in the
Western District of Kentucky; in Jefferson County, Kentucky; in
the Southern District of Indiana; or in Clark County, Indiana.
[R. 11-1,
pp.
Louisville,
Indiana.
4-7]
Benton
Kentucky,
and
is
now
previously
resides
a
in
resident
of
Jeffersonville,
These facts strongly suggest that should Benton file
any future lawsuits, he will do so in those jurisdictions.
That
said, the Court will not hesitate to deny pauper status, collect
a filing fee, or impose sanctions upon Benton should he file
litigation
that
is,
like
this
case,
filed
for
frivolous
or
abusive purposes.
Accordingly, IT IS ORDERED that:
1.
Defendant’s motion to dismiss the complaint [R. 11] is
GRANTED; Defendant’s motion for injunctive relief [R. 11] is
DENIED.
8
2.
amended
The federal claims asserted in Benton’s original and
complaints
[R.
1,
10]
are
DISMISSED
WITH
PREJUDICE;
Benton’s claims under state law are DISMISSED WITHOUT PREJUDICE.
3.
Benton’s motion to transfer venue [R. 14] is DENIED.
4.
The Court will enter a judgment contemporaneously with
this Order.
5.
The Court CERTIFIES that any appeal would not be taken
in good faith.
6.
This matter is STRICKEN from the active docket.
This the 4th day of September, 2014.
9
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