Benton v. Kentucky Community and Technical College
Filing
10
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.,
Plaintiff,
V.
KENTUCKY COMMUNITY & TECHNICAL
COLLEGE,
Defendant.
***
Plaintiff
David
***
Lewis
Jeffersonville, Indiana.
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)
)
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Civil Action No. 5: 14-322JMH
MEMORANDUM OPINION
AND ORDER
***
***
Benton,
Sr.,
is
a
resident
of
Proceeding without an attorney, Benton
has filed an original and amended complaint against the Kentucky
Community & Technical College System (“KCTCS”) in Versailles,
Kentucky.
[R. 1, 5]
The Court has granted Benton’s motion to
proceed in forma pauperis by separate Order.
In
his
original
complaint,
Benton
[R. 4]
alleged
that
KCTCS
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
study
routinely
discriminate
[R. 1, p. 2]
conduct
against
job
criminal
applicants
background
with
checks
criminal
and
records.
Benton sought $2.5 million in damages and an
1
apology for unspecified “civil, federal, city/state violations.”
[R. 1, p. 3]
In his amended complaint, Benton contended that
the
conduct
foregoing
Amendment,
18
U.S.C.
violated
§
522.020, and 522.050.
1038,
his
and
rights
Ky.
under
Rev.
the
Stat.
First
367.170,
[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.
district
court
malicious,
must
fails
to
28 U.S.C. §§ 1915(e)(2), 1915A.
dismiss
any
state
claim
a
claim
that
upon
is
which
A
frivolous
relief
may
or
be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
(6th Cir. 1997).
more
lenient
attorney.
McGore v. Wrigglesworth, 114 F.3d 601, 607-08
The Court evaluates Benton’s complaint under a
standard
because
he
is
not
represented
by
an
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.
Bell
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
2
for lack of subject matter jurisdiction.
prohibits
matter
a
federal
jurisdiction
district
over
a
court
suit
The Eleventh Amendment
from
for
exercising
money
damages
subject
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).
KCTCS was
created by Kentucky statute, Ky. Rev. Stat. 164.580, is part of
Kentucky’s
164.001(16),
“postsecondary
and
education
Kentucky
law
system,”
Ky.
establishes
Rev.
that
Stat.
“state
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
matter jurisdiction.
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
prejudice.
Benton’s claim under 18 U.S.C. § 1038 - a federal
criminal statute - must be dismissed for lack of standing, as
3
only a federal prosecutor, not a private citizen, may prosecute
a claim for violation of its terms.
State
of
Texas,
153
F.
App’x
28 U.S.C. § 547(1); Gill v.
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).
Benton’s First Amendment claim must also be dismissed with
prejudice.
allegations
Benton
he
makes
previously
in
this
filed
case
in
suit
the
regarding
Circuit
Court
Jefferson County, Kentucky, in Case No. 12-CI-6215.
the
of
In that
complaint, filed on November 27, 2012, Benton alleged that he
was denied employment in 2004, 2006, and 2011 because of his
criminal background.
15,
2013,
pending
in
and
the
That complaint was dismissed on January
Benton’s
Kentucky
appeal
Court
from
of
that
Appeals.
dismissal
See
remains
Benton
v.
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.
4
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).
Benton’s First
Amendment claims must therefore be dismissed with prejudice as
time barred.
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
supplemental
“[a]fter
a
12(b)(6)
dismissal, there is a strong presumption in favor of dismissing
supplemental claims.”).
Accordingly, IT IS ORDERED that:
1.
amended
The federal claims asserted in Benton’s original and
complaints
[R.
1,
5]
are
DISMISSED
WITH
PREJUDICE;
Benton’s claims under state law are DISMISSED WITHOUT PREJUDICE.
2.
The Court will enter a judgment contemporaneously with
this Order.
3.
The Court CERTIFIES that any appeal would not be taken
in good faith.
4.
This matter is STRICKEN from the active docket.
5
This the 4th day of September, 2014.
6
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