Benton v. Kentucky Community and Technical College
MEMORANDUM OPINION & ORDER: 1) Federal claims asserted in 1 original and 5 amended complaints are DISMISSED WITH PREJUDICE; Benton's claims under state law are DISMISSED WITHOUT PREJUDICE. 2) Court will enter a judgment w this Order. 3) Court CERTIFIES that any appeal would not be taken in good faith. 4) This matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 9/4/2014.(SCD)cc: Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID LEWIS BENTON, SR.,
KENTUCKY COMMUNITY & TECHNICAL
Civil Action No. 5: 14-322JMH
Proceeding without an attorney, Benton
has filed an original and amended complaint against the Kentucky
Community & Technical College System (“KCTCS”) in Versailles,
[R. 1, 5]
The Court has granted Benton’s motion to
proceed in forma pauperis by separate Order.
instilled in him the false hope that he had a reasonable chance
of employment upon graduation notwithstanding his prior criminal
record, but that potential employers in his chosen fields of
[R. 1, p. 2]
Benton sought $2.5 million in damages and an
apology for unspecified “civil, federal, city/state violations.”
[R. 1, p. 3]
In his amended complaint, Benton contended that
522.020, and 522.050.
[R. 5, p. 1]
The Court must conduct a preliminary review of Benton’s
complaint because he has been granted permission to proceed in
forma pauperis and because he asserts claims against government
officials and entities.
28 U.S.C. §§ 1915(e)(2), 1915A.
granted, or seeks monetary relief from a defendant who is immune
from such relief.
(6th Cir. 1997).
McGore v. Wrigglesworth, 114 F.3d 601, 607-08
The Court evaluates Benton’s complaint under a
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v.
Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the
Court accepts the plaintiff’s factual allegations as true, and
his legal claims are liberally construed in his favor.
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
As this Court has determined in another case filed by the
plaintiff, Benton v. Kentucky Community & Technical College, No.
14-42-JMH (E.D. Ky. 2014), Benton’s complaint must be dismissed
for lack of subject matter jurisdiction.
The Eleventh Amendment
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).
created by Kentucky statute, Ky. Rev. Stat. 164.580, is part of
institutions of higher education under KRS 164 are agencies of
the state” under Ky. Rev. Stat. 44.073(1).
Because state law
directly governs KCTCS’s creation and operations, it is an “arm
of the state” for Eleventh Amendment purposes under Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
The Court must dismiss Benton’s complaint for lack of subject
Brotherton v. Cleveland, 173 F.3d 552, 560
(6th Cir. 1999); McCollum v. Owensboro Community & Technical
College, No. 4:09CV-121-M, 2010 WL 1742379, at *2 (W.D. Ky.
April 29, 2010).
In addition, Benton’s federal claims must be dismissed with
Benton’s claim under 18 U.S.C. § 1038 - a federal
criminal statute - must be dismissed for lack of standing, as
only a federal prosecutor, not a private citizen, may prosecute
a claim for violation of its terms.
28 U.S.C. § 547(1); Gill v.
(“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).
Benton’s First Amendment claim must also be dismissed with
Jefferson County, Kentucky, in Case No. 12-CI-6215.
complaint, filed on November 27, 2012, Benton alleged that he
was denied employment in 2004, 2006, and 2011 because of his
That complaint was dismissed on January
Kentucky Community & Technical College, No. 14-42-JMH (E.D. Ky.
2014) [R. 11-2, pp. 60-67, therein]
The foregoing establishes
that the conduct about which Benton complains occurred between
three and ten years before he filed his complaint in this action
on January 27, 2014, well beyond the applicable one-year statute
of limitations applicable to his claims.
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).
Amendment claims must therefore be dismissed with prejudice as
survive dismissal, the Court declines to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c).
Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th
Cir. 1996) (noting that “[i]f the court dismisses plaintiff’s
dismissal, there is a strong presumption in favor of dismissing
Accordingly, IT IS ORDERED that:
The federal claims asserted in Benton’s original and
Benton’s claims under state law are DISMISSED WITHOUT PREJUDICE.
The Court will enter a judgment contemporaneously with
The Court CERTIFIES that any appeal would not be taken
in good faith.
This matter is STRICKEN from the active docket.
This the 4th day of September, 2014.
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