McCord et al v. Board of Education of Fleming County Kentucky et al

Filing 84

MEMORANDUM OPINION & ORDER: IT IS ORDERED THAT (1) Dft Wagner's Motion to Dismiss 8 is GRANTED. (2) 21 MOTION to Dismiss for failure to state a claim by Kentucky Board of Education is GRANTED. (3) 22 MOTION to Dismiss by Terry H olliday (4) Dft Thomas MacDonald's Motion for Ext of Time to Respond to Pla Complaint 33 is GRANTED. (5) Dft Thomas MacDonald's Answer 32 is timely filed. (6) Dft John Price's Motion to Quash Summons 35 is GRANTED. (7) Pla Min nie McCord's Motion for Ext Time to file response to various motions to dismiss 36 is GRANTED. (8) Pla Minnie and Matthew McCord's Motion for Leave to Amend Summons and Complaint 37 is DENIED. (9) Pla Minnie and Matthew McCord's Mo tion for Service 38 is DENIED. (10) Pla Minnie and Matthew McCord's Motion to Deny Dismissal of Dft Tom MacDonald 40 is DENIED WITHOUT PREJUDICE for reasons stated. (11) Pla Minnie and Matthew McCord's Motion for Substitution of Parties 42 to name Dft Terry Holliday in official capacity and to substitute the current Commissioner of Education as a party is GRANTED. (12) Stephen L. Pruitt, in official capacity as KY Comm of Education is substituted for Dft Terry Holliday as dft. (13 ) All claims against Stephen L. Pruitt, in official capacity as KY Comm of Education are DISMISSED for same reasons as claims against KY Board of Educ are dismissed. (14) Pla Motion to Deny Quash 49 regarding summons on John Price is DENIED. (15) Pla Motion for Summary Judgment 50 is DENIED AS MOOT. (16) Upon Court's own motion, Robert L. Chenoweth is SUBSTITUTED for Dft Chenoweth Law Office. (17) Dft Robert L. Chenoweth's Motion to Dismiss 29 and Motion to Dismiss 59 are GRAN TED. (18) Pla Motion for Ext Time 51 is GRANTED IN PART AND DENIED IN PART. (19) Pla responses to various motions deemed timely filed. (20) Pla Motion to Deny Dismissal of dft Bd of Educ of Fleming Co, Brian Creasman, Tom Price and Mark Leet 61 i s DENIED. (21) Pla Motion to Deny Dismissal of Dft KY Board of Education 62 is DENIED. (22) Pla Motion to Deny Dismissal of Robert Chenoweth 63 is DENIED. (23) Pla Notice 76 to dismiss is GRANTED. (24) All claims arising against dfts in this matter under KY law are DISMISSED. (25) Pla Motion to Amend Summons and complaint 78 is DENIED. IT IS FURTHER ORDERED (26) Pla request for relief 47 that Court notify appropriate AG that a statute has been questioned is DENIED.. Signed by Judge Joseph M. Hood on 3/31/2017.(GLD)cc: COR, Pro Se Pla via U.S. Mail

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

MINNIE McCORD, individually )
and as next friend of L.M., )
and MATTHEW McCORD,
)
)
)
Plaintiffs,
)
)
v.
)
BOARD OF EDUCATION OF FLEMING )
COUNTY, et al.,
)

Civil Action No.
5:16-CV-75-JMH

MEMORANDUM OPINION & ORDER

Defendants.
**** **** **** ****
This matter is before the Court upon a number of motions,
each addressed in turn below.
I.
Plaintiffs Minnie and Matthew McCord, each proceeding pro
se, complain of a litany of abuses at the hands of the various
defendants. In short, Plaintiff Minnie McCord was a teacher in
the Fleming County School District until the termination of
her

employment

on

April

15,

2014.

The

termination

of

her

employment followed an incident that occurred when she hired a
student to engage in some manner of work at her home which, in
turn, led to criminal allegations involving drugs, alcohol,
and

sex

by

that

student

on

February
1

14,

2014.

After

the

allegations
suspended

were
with

made
pay

by
on

the

student,

February

17,

Minnie
2014,

McCord

was

pending

an

investigation of the matter, at which time she was placed
under restrictions by her employer requiring her to have no
contact with students, school district personnel, and to not
be on school property. Eventually, she was arrested on March
4, 2014, and charged with two counts of unlawful transaction
with a minor and trafficking in marijuana under 8 ounces. 1 The
criminal complaint upon which this arrest was effected was
taken

by

Jared

Wagner,

a

trooper

with

the

Kentucky

State

Police. Plaintiff Minnie McCord was arraigned on the charges
in that complaint on March 6, 2014, then tried before a jury
and acquitted of all charges on August 28, 2014.
Plaintiffs complain that their rights, including Minnie
McCord’s right to due process and Matthew McCord’s right to
associate with other minors, were violated by virtue of the
actions undertaken by Defendants to bring about these charges,
to terminate Minnie McCord’s employment, and to continue both
criminal and administrative process against and involving her,
all in violation of 42 U.S.C. § 1983, citing a number of

1

Plaintiffs allege that the alleged victim was not, in fact, a minor.
2

provisions
complain

of
that

defendants’

the

federal

these

misuse

wrongs
of

constitution. 2
were

what

Plaintiffs

perpetrated

Plaintiffs

term

by

also

various

“non-public

information” of which Plaintiffs did not learn until March 6,
2014. 3 Plaintiffs further aver that they only learned of the
entirety of the evidence used in determining whether Minnie
McCord’s employment should be terminated when she received it
from

her

attorney

in

November

2015,

during

administrative

proceedings related to her appeal from the termination of her
employment.

Those

administrative

proceedings

involved

the

Kentucky Board of Education, then headed by Commissioner of
Education Terry Holliday, now retired.
Defendant Robert L. Chenoweth

of Chenoweth Law Office

served as counsel for Defendant Board of Education of Fleming

2

Plaintiffs Minnie and Matthew McCord have since filed a notice [DE 76] that
they are not seeking criminal charges nor are they demanding a jury trial.
They also indicate that they wish to “dismiss Kentucky State Law Claims and
state this civil action is for monetary damages for the violation and
deprivation of Federal Civil Rights.” Accordingly, the Court limits its
discussion to their federal claims brought pursuant to 42 U.S.C. § 1983. As
all of Plaintiffs’ claims under federal law are subject to the same analysis
concerning the relevant statute of limitations, the Court sees no reason to
and does not delve into the relative merits or even the particulars of
Plaintiffs’ claims of constitutional wrongs in this Memorandum Opinion and
Order.

3

Plaintiffs aver that they became aware of the use of information on “March
6, 2015, 2 days after the plaintiff’s annual arrest date.” The Court assumes,
therefore, that this is typographical error and refers to March 6, 2014, two
days after Minnie McCord’s actual arrest date. The Court surmises that they
became aware at that time of the particulars of the allegation made by the
student which resulted in the criminal proceedings.
3

County, Kentucky, in matters against Plaintiff Minnie McCord.
Plaintiffs aver that both Defendants Brian Creasman and Tom
Price served as Superintendent of the Fleming County School
District,

that

Defendant

Mark

Leet

served

as

Principal

of

Fleming County High School, that Defendant Thomas MacDonald
served

as

a

“board

of

education

attorney[]”,

and

that

Defendant John Price served as the county attorney for Fleming
County during the relevant times and were each, in their own
way, responsible for the wrongs allegedly committed against
Plaintiffs in the time frame set forth above.
II.
“A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the
plaintiff must be considered as true, or it can attack the
factual basis for jurisdiction, in which case the trial court
must weigh the evidence and the plaintiff bears the burden of
proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381
F.3d 511, 516 (6th Cir. 2004) (citing RMI Titanium Co. v.
Westinghouse

Elec.

Corp.,

78

F.3d

1125,

1133–35

(6th

Cir.

1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d
320, 325 (6th Cir. 1990)).
4

Rule 12(b)(5) provides that an action may be dismissed
for

“insufficient

12(b)(5).

service

Generally,

the

of

process.”

plaintiff

Fed.

bears

“the

R.

Civ.

P.

burden

of

establishing [the service's] validity.” Metro. Alloys Corp. v.
State Metals Indus., Inc., 416 F.Supp.2d 561, 563 (E.D.Mich.
2006).

Courts

may

look

to

“record

evidence”

and

“uncontroverted affidavits” in determining whether plaintiffs
have met this burden. Id.
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is
met when the facts in the complaint allow “the court to draw the
reasonable

inference

that

the

defendant

misconduct

alleged.”

Id.

The

complaint

is

liable

need

not

for

the

contain

“detailed factual allegations,” but must contain more than mere
“labels and conclusions.” Id. Put another way, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).

5

III.
The Court first turns its attention to Plaintiffs Minnie
and Matthew McCord’s Motion for Summary Judgment [DE 50] with
respect to fraud, which is a state law claim. In light of their
Notice [DE 76], in which they seek to “dismiss Kentucky State
Law Claims and state this civil action is for monetary damages
for the violation and deprivation of Federal Civil Rights,” this
Motion is now moot and will be denied.

IV.
Next,
Dismiss

Defendant

[DE

22]

the

Terry

Holliday

claims

has

against

filed

him

for

a

Motion

to

insufficient

service of process, and Plaintiffs’ have responded in their
Motion to Substitute Party [DE 42]. 4 Holliday served as the
Commissioner of Education for the Commonwealth from August 5,
2009, to September 1, 2015, and retired on September 1, 2015.
He was no longer an officer of the Commonwealth of Kentucky
nor a resident of the Commonwealth of Kentucky at the time
that Plaintiffs filed their Complaint on March 4, 2016, and
had no office at 500 Mero Street, CPT, Frankfort, KY 40601,
4

In their Motion to Substitute [DE 42], Plaintiffs clarify that their claims
against Defendant Holliday in his official capacity are actually claims
against his successor as the Commissioner of Education, known to the Court to
be Stephen L. Pruitt. Accordingly, Pruitt is substituted, in his official
capacity, for Holliday in his official capacity. However, these claims will
be dismissed as they are barred by the doctrine of sovereign immunity. See
infra Section VII.
6

where Plaintiff sought to perfect service by certified mail.
Plaintiffs do not contest these facts.
As such, there was a failure of service under Fed. R.
Civ. P. 4(e) because service, as attempted, did not include
personal delivery to Holliday, leaving a copy at his dwelling
or usual place of abode, or delivering a copy to an agent
authorized by appointment or by law to receive service of
process, nor did it comport with the requirements of state
law, which would permit service by other means. Under Kentucky
Civil Rule 4.04(8), “[s]ervice may be made upon an individual
out of this state . . . by certified mail in the manner
prescribed in Rule 4.01(1)(a) or by personal delivery of a
copy of the summons and of the complaint . . . by a person
over 18 years of age.” In the absence of adequate service of
process, this Court may not exercise personal jurisdiction
over Holliday and the claims against him must be dismissed. 5
See Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104
(1987)
5

(“Before

a

federal

court

may

exercise

personal

The Court notes that the federal claims under 42 U.S.C. § 1983 against
Defendant Holliday in his individual capacity would also be barred upon
application of the statute of limitations, for the same reasons as stated
elsewhere in this Memorandum Opinion and Order with respect to other
Defendants. Plaintiffs’ effort to suggest that Holliday’s motion should be
denied because of additional issues arising out of some sort of alleged
whistleblower retaliation against Minnie McCord related to financial
mismanagement of the Fleming County School District is conclusory and the
Court considers it no further.
7

jurisdiction over a defendant, the procedural requirement of
service

of

summons

must

be

satisfied.”).

Accordingly,

the

claims against him will be dismissed pursuant to Fed. R. Civ.
P. 12(b)(2) and (5).
V.
Next, the Court considers Defendant John Price’s Motion
to Quash [DE 35], in which he affies that the summons and a
copy

of

the

Complaint

were

sent

to

his

office

via

non-

restricted delivery mail, where they were signed for by his
secretary, Rhonda Hawkins. Price further affies that he has
never authorized Hawkins to accept service of process on his
behalf.

In

service

was

should

have

their
valid

response
since

refused

to

[DE

49],

Plaintiffs

argue

that

Hawkins

accepted

it

and

that

she

accept

service

if

she

was

not

authorized to do so. The Court agrees with Price that this is
not enough and that the procedural requirement of service of
summons

has

not

been

satisfied.

The

Court

does

not

have

personal jurisdiction over Price and the claims against him
will be dismissed. See Omni Capital Int’l, 484 U.S. at 104;
Fed. R. Civ. P. 12(b)(2) and (5).
VI.

8

The

Court

Matthew

considers,

McCord’s

Motion

as

well,

for

Plaintiffs

Service

[DE

38]

Minnie
to

be

and
made

pursuant to Fed. R. Civ. P. 4(c)(3) by a Marshal or Someone
Specially Appointed with respect to Defendants Terry Holliday
and Tom Price. Fed. R. Civ. P. 4(c)(3) provides that, “[a]t the
plaintiff's request, the court may order that service be made by
a

United

States

marshal

or

deputy

marshal

or

by

a

person

specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915 . . .” Plaintiffs requested to proceed in forma
pauperis in this matter under 28 U.S.C. § 1915 [DE 2], but their
Motion

was

denied

without

prejudice

supported by the appropriate materials.

to

a

further

filing

Plaintiffs then paid

their filing fee of $400.00 instead of renewing their motion to
proceed

in

forma

pauperis,

and,

thus,

the

Court

“may”

order

service by a United States marshal but is not obliged to do so.
The court declines to do so, however, because it finds that
Plaintiffs’ claims are so completely devoid of merit that the
Court

lacks

subject-matter

jurisdiction

to

hear

the

claims

against Holliday and Price. The claims against them in their
official capacities are barred by sovereign immunity and those
against

them

in

their

individual

capacities

are

barred

by

operation of the statute of limitations, as explained elsewhere
9

in this Memorandum Opinion & Order. This Court therefore, upon
its own motion, dismisses any further claims against Holliday,
in his individual capacity, and Price, in his individual and
official capacity, and will deny Plaintiffs’ Motion for Service
as moot.

Fed. R. Civ. P. 12(b)(1) and (6).

VII.
Defendant

Jared

Wagner

has

filed

a

Motion

to

Dismiss

Plaintiffs’ claims against him on a number of grounds [DE 8].
Notably, he argues that any claims against him in his official
capacity as a Kentucky State Trooper are barred by sovereign
immunity.

With

individual
prosecution

respect

capacity
or

to

under

other

any
42

claims

U.S.C.

violations

of

§

against
1983

him

for

Plaintiffs’

in

his

malicious
federal

constitutional rights, he argues that they are barred by the
applicable statute of limitations.
Defendant Robert L. Chenoweth has filed a First Motion to
Dismiss for Lack of Jurisdiction [DE 29] and a Motion to
Dismiss in Response to Plaintiffs’ Amended Summons and Reply
in Support of Chenoweth Law Office’s Motion to Dismiss for
Lack of Jurisdiction [DE 59], arguing that the Court lacks

10

jurisdiction

over

the

claims

against

him

because

they

are

barred by the applicable statute of limitations. 6
Defendant Kentucky Board of Education (“KBE”) has filed a
Motion to Dismiss Plaintiffs’ claims against it on a number of
grounds

[DE

21],

asserting

sovereign

immunity

under

the

Eleventh Amendment as an agency and instrumentality of the
Commonwealth

in

the

performance

of

essential

governmental

functions and because “neither a State nor its official acting
in their official capacities are ‘persons’ under § 1983.” See
KRS 156.035(1), Will v. Michigan Dept. of State Police, 491
U.S. 58, 71 (1981). 7 KBE argues, as well, that Plaintiffs’
claims under § 1983 are time barred under the statute of
limitations because their claim was filed more than a year
after the termination of her employment by the Fleming County
School

District

on

April

15,

2014,

and

her

acquittal

of

criminal charges on August 28, 2014. KBE argues that it is

6

Defendant explains that there is no legal entity known as the Chenoweth Law
Office. Rather Robert L. Chenoweth does business as Chenoweth Law Office and
is the sole proprietor thereof. Robert L. Chenoweth will be substituted as
the defendant in this matter. Plaintiffs Minnie and Matthew McCord have
filed, pro se, have also filed a Motion to Deny Dismissal of Robert Chenoweth
[DE 68], which the Court understands as a Response in opposition to Defendant
Robert Chenoweth’s Motions. In that Motion, understood as a response,
Plaintiffs tacitly concede that Robert Chenoweth should be substituted as a
party to this action. Plaintiffs have also addressed Chenoweth’s first filed
motion in a Response to All Defendants and Motion to Deny Dismissal [DE 48].
7 Plaintiffs Minnie and Matthew McCord have filed, pro se, a Motion to Deny
Dismissal of Defendants Kentucky Board of Education [DE 62], which the Court
understands as a Response in opposition to the KBE’s Motion to Dismiss.
11

irrelevant

that

the

resolution

of

her

appeal

of

her

termination to the administrative tribunal was within one year
of the filing of her initial complaint because Plaintiff asked
the administrative hearing officer to dismiss her termination
appeal prior to any hearing or final decision, meaning that no
action was undertaken by the administrative tribunal.
The

Court

notwithstanding
official

agrees

with

Plaintiffs’

capacity

claims

all

of

objections.

against

Wagner

these

arguments,

First,

Plaintiffs’

and

their

claims

against the KBE are barred by sovereign immunity. Both the
Kentucky State Police and the KBE are arms of the Commonwealth
of Kentucky and, thus, have sovereign immunity from claims where
immunity is not waived in the absence of an exception. 8 See U.S.
Const. amend. XI; Will v. Michigan Dep't of State Police, 491
U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that
states are entitled to sovereign immunity under the Eleventh
Amendment and, absent waiver, cannot be sued under § 1983); Hall
v. Med. Coll. of Oh., 742 F.2d 299, 301 (6th Cir. 1984) (holding
that immunity extends to a public agency if “said agency or
institution can be characterized as an arm or alter ego of the
8

For that matter, neither the Kentucky State Police, vis à vis Wagner in his
official capacity, nor KBE are a “person” subject to suit under 42 U.S.C. §
1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)
(“neither a State nor its officials acting in their official capacities are
‘persons' under § 1983).
12

state”); see, e.g., Baughman v. Brooks, Civil No. 5:15-cv-29JMH, 2015 WL 3916150, *2 (E.D.Ky. June 25, 2015) (holding that
Kentucky State Police is an alter ego of the Commonwealth of
Kentucky

for

the

purposes

of

sovereign

immunity

analysis);

J.B.F. v. Kentucky Dept. of Educ., 2016 WL 3167546, *6 (E.D.Ky.
June 3, 2016) (holding that Kentucky Department of Education is
a state agency and an arm of the state as one of Kentucky’s
principle

governmental

Board

Education);

“waiver

of
of

the

departments
KRS

sovereign

governed

156.035(c)
immunity

of

by

(expressly
the

the

Kentucky

denying

Commonwealth

any
with

respect to claims against the Kentucky Board of Education, the
Department of Education, or any of their respective officers,
agents, or employees”).
Further, all of Plaintiffs’ claims under 42 U.S.C. § 1983
are subject to the Commonwealth of Kentucky’s one-year statute
of limitations for claims for personal injury. See Wilson v.
Garcia, 471 U.S. 261 (1985); Brown v. Wigginton, 981 F.2d 913
(6th Cir. 1992); Frisby v. Bd. of Educ. of Boyle County, 707
S.W.2d 359 (Ky. Ct. App. 1986); KRS 413.140. The Court rejects
Plaintiffs’ suggestion that the five-year statute of limitations
for fraud under KRS 413.120 is applicable to her cause of action
for violations of 42 U.S.C. § 1983 in this case because, while
she claims that some subset of Defendants withheld information
13

from her, she has averred that she was aware of the termination
of her employment and the basis for the criminal proceedings
(insofar

as

these

are

related)

against

her

no

later

than

February 2014 and March 2014, even if she was not aware of all
of the details.
In the employment context, a cause of action accrues when a
reasonably prudent person in the plaintiff’s position would have
been on notice to protect her rights. Frisby, 707 S.W.2d at 361;
see also Bd. of Trustees v. Hayse, 782 S.W.2d 609 (Ky. 1989)
(concluding a claim accrued on the date the employee received
notice their employment would not be extended). Plaintiff Minnie
McCord avers that she was notified by letter dated April 15,
2014, of the termination of her employment. Complaint, ¶¶ 75-77.
Thus, any cause of action which Plaintiffs have which arises out
of the severance of her employment accrued on that date, and the
one year limitations period expired on April 15, 2015. This same
period encompasses any claims which arise out of the instigation
of criminal proceedings against her and her knowledge of the
grounds for those proceedings, which was no later than March 6,
2014. Alternatively, even if the Court were to determine that
accrual of Plaintiffs’ § 1983 claims for malicious prosecution
or unlawful arrest were tied to the date of her acquittal in
August 2014, it is of no matter. This action was not filed until
14

March 4, 2016, well over a year after all of the events relevant
to their causes of action.
While

Minnie

McCord

asserts

in

the

Complaint

that

she

suffers from various psychological maladies, including attention
deficit

hyperactivity

disorder

and

post-traumatic

stress

disorder, and suggests elsewhere that these maladies should toll
her obligation to act, neither the Complaint nor any other paper
in the record contains an assertion which would allow the Court
to conclude that she was of “unsound mind” at the time her cause
of

action

virtue

of

accrued,
KRS

so

as

to

413.170(1).

toll

See

the

limitations

Southeastern

period

Kentucky

by

Baptist

Hospital, Inc. v. Gaylor, 756 S.W.2d 467, 469 (Ky. 1988) (a
plaintiff claiming tolling by virtue of having been of “unsound
mind”

must

“incapable

demonstrate
of

managing

that

her

condition

her

own

has

affairs”);

rendered

also

Rigazio

her
v.

Archdiocese of Louisville, 853 S.W.2d 295, 296-97 (Ky. Ct. App.
1993)

(diagnosis

insufficient

to

of

post-traumatic

demonstrate

“unsound

stress
mind”).

disorder
The

Court

is
can

afford her no relief by tolling the time to bring her action.
Whether

or

not

Plaintiffs’

claims

against

the

various

defendants arising out of this issue are otherwise appropriate,
the Court has no jurisdiction to consider them further as the
statute of limitations has expired. Plaintiff Minnie and Matthew
15

McCord’s

claims

Defendants

are

Wagner,

out

in

shall be dismissed.

of

his

time,

and

individual

their

claims

capacity,

and

against

Chenoweth

Fed. R. Civ. P. 12(b)(1) and (6).
VIII.

This

leaves

Defendants

the

Board

question

of

of

Education

Defendants

of

claims

Fleming

against

County,

Brian

Creasman, Tom Price, Mark Leet, and Tom MacDonald. Plaintiffs
Minnie and Matthew McCord have filed a Response and Motion to
Deny Dismisal of Defendant Tom Macdonald [DE 40] and a Motion
to Deny Dismissal of Defendants Board of Education of Fleming
County, Brian Creasman, Tom Price and Mark Leet [DE 61], which
the

Court

Answers

understands

filed

by

as

these

responses
parties.

in

opposition

These

are

to

not

the

motions

contemplated by the rules because the Defendants’ Answers do
not

require

a

response.

Nonetheless,

in

these

filings,

Plaintiffs object to Defendants’ stated defense of the statute
of limitations. Plaintiffs argue that the discovery rule tolls
the time for filing any of their claims under 42 U.S.c. § 1983
because it was only on March 6, 2015, that Minnie McCord
learned of the existence of an “exculpatory report” concerning
her conduct written by the assistant principal at the high
school

in

February

2014,

which
16

was

confirmed

when

Minnie

McCord later learned that neither the report nor two audio
files had not been included as part of a submission by Tom
Price to the Educational Professional Standards Board at some
point in 2014. It will come as no surprise that the Court
disagrees and that her claims against these Defendants are
barred by the one-year statute of limitations.
“[A] district court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when the
allegations are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.”
Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999); see Metzenbaum v.
Nugent, 55 Fed.App'x 729 (6th Cir. 2003) (affirming district
court's sua sponte dismissal prior to service of process for
lack of subject-matter jurisdiction where the plaintiff's claim
was absolutely devoid of merit). In this instance, while the
Court

is

acting

opportunity

to

on
brief

its

own

this

motion,
issue

Plaintiffs

several

times

have
–

had

and

an

have

voluntarily done so with respect to these defendants – and have
failed to convince the Court that the one-year limitation on
claims under 42 U.S.C. § 1983 does not bar their claims. It is
no different with respect to these defendants, for the reasons

17

explained in detail elsewhere in this Memorandum Opinion and
Order.

Fed. R. Civ. P. 12(b)(1) and (6).

IX.
Plaintiffs

Minnie

and

Matthew

McCord

have

also

filed

a

Motion to Amend Summons and Complaint 9 [DE 78], in which they
seek to add a number of causes of action, most of which are
state claims and others of which are new formulations of their
federal claims under 42 U.S.C. § 1983. To the extent that Minnie
and Matthew McCord seek leave to file a Second Amended Complaint
[DE 51], which would raise a litany of new claims against these
Defendants

and

several

new

defendants,

it

shall

be

denied.

Subsequent to filing this Motion, Plaintiffs Minnie and Matthew
McCord

have

asserted

that

they

wish

to

pursue

only

federal

claims [DE 76], which arise under 42 U.S.C. § 1983, and the
Court concludes that it would be futile to permit amendment to
permit Plaintiffs to pursue additional claims under 42 U.S.C. §
1983, as they would be barred either by sovereign immunity (for
those defendants who are arms of the state) or out of time upon
application of the one-year statute of limitations, as discussed
elsewhere in this Memorandum Opinion and Order.

9

Plaintiffs filed an earlier Motion for Leave to Amend [DE 37], with which
they tendered no proposed Amended Complaint nor set forth any rationale for
the proposed amendment. In light of their subsequent Motion to Amend [DE 78],
which is addressed above, the earlier motion will be denied.
18

Although

Plaintiffs’

proposed

Second

Amended

Complaint

would aver generally that “Defendants abused their positions in
their Official capacities and acting under color of law between
2011 through 2016” [DE 51-2 at 4, Page ID# 491], all of their
causes of action arise out of Minnie McCord’s arrest on March 4,
2014, the prosecution of that criminal matter which concluded in
August 2014, the proceedings related to the termination of her
employment with the Fleming County School District in the spring
of 2014, her discovery of the alleged withholding of certain
information from her with respect to that process in March 2014
(which was later, she claims confirmed, on March 6, 2015), and
her divorce from her now ex-husband, which took place in 2013,
and a number of issues arising out of the custody arrangement
for her children involving her children and ex-husband which
took place from 2014-2016, which are unrelated to the claims
arising

under

federal

law

as

best

as

the

Court

can

tell.

Plaintiffs also aver that they were injured, in violation of the
First Amendment, when Plaintiff Minnie McCord’s keys (presumably
to the school where she had been employed) were seized and she
was escorted off of public property in July 2014, and that they
were

injured

course

of

by

the

violation
criminal

of

the

action

Sixth

against

concluded with acquittal in August 2014.
19

Amendment
Minnie

during

McCord

the

which

Plaintiffs’ Second Amended Complaint would aver that they
were deprived of due process of law and other rights under the
First, Fifth, Eighth, Ninth, and Fourteenth Amendments to the
United States Constitution until January 15, 2015, arising from
her termination from Fleming County School District, but this
conclusory allegation of continuing harm does not change the
discovery of her cause of action from the date Minnie McCord was
suspended without pay on April 1, 2014, or the termination of
her

employment

on

April

15,

2014,

or

even

her

acquittal

of

criminal charges in August 2014, of which the parties were aware
at the time based on the averments in the various iterations of
their complaint. Ultimately, each of the proposed claims under
42 U.S.C. § 1983, whatever merit they might otherwise have or
lack, would be barred by application of the one-year statute of
limitations. Amendment would be futile, as the claims could not
survive a motion to dismiss, and leave to amend shall be denied.
See Riverview Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d
505, 512 (6th Cir. 2010) (holding that a court may deny a motion
for

leave

to

amend

for

futility

if

the

amendment

could

not

withstand a motion to dismiss).
Accordingly, IT IS ORDERED:
(1)

That Defendant Jared Wagner’s Motion to Dismiss [DE 8]

is GRANTED;
20

(2)

That Kentucky Board of Education’s Motion to Dismiss

[DE 21] is GRANTED;
(3)

That Defendant Terry Holliday’s Motion to Dismiss

[DE 22] is GRANTED;
(4)

That

Defendant

Thomas

MacDonald’s

Motion

for

an

Extension of Time to Respond to Plaintiffs’ Complaint [DE 33]
is GRANTED;
(5)

That Defendant Thomas MacDonald’s Answer [DE 32] is

deemed timely filed;
(6)

That Defendant John Price’s Motion to Quash Summons

[DE 35] is GRANTED;
(7)

That Plaintiff Minnie McCord’s Motion for Extension

of Time to file responses to the various motions to dismiss
[DE 36] is GRANTED;
(8)

for

That Plaintiffs Minnie and Matthew McCord’s Motion

Leave

to

Amend

the

Summons

and

Complaint

[DE

37]

is

DENIED.
(9)

That Plaintiffs Minnie and Matthew McCord’s Motion

for Service [DE 38] to be made pursuant to Fed. R. Civ. P.
4(c)(3) by a Marshal or Someone Specially Appointed is DENIED.
(10) That Plaintiffs Minnie and Matthew McCord’s Motion to
Deny

Dismissal

of

Defendant

Tom
21

MacDonald

[DE

40]

is

DENIED

WITHOUT PREJUDICE, as the Court understands this motion to be a
response to Defendant MacDonald’s Answer [DE 32], which is not a
motion itself even though it states defenses in this matter.
(11) That Plaintiffs Minnie and Matthew McCord’s Motion for
Substitution

of

Parties

[DE

42],

understood

as

a

motion

to

clarify the complaint to name Defendant Terry Holliday in his
official

capacity

and,

thus,

to

substitute

the

current

Commissioner of Education as a party, is GRANTED.
(12) That Stephen L. Pruitt, in his official capacity as
Kentucky Commissioner of Education, is substituted for Defendant
Terry Holliday as a defendant in this matter.
(13) That
official
DISMISSED

all

capacity
for

claims
as

the

against

Kentucky

same

Stephen

Commissioner

reasons

as

those

L.

Pruitt,

of

in

his

Education,

are

claims

against

the

Minnie

and

regarding

the

Kentucky Board of Education are dismissed.
(14) That

the

Matthew McCord’s

relief

Motion

to

requested
Deny

in

Quash

Plaintiffs
[DE

49]

Summons on John Price is DENIED;
(15) That Plaintiffs Minnie and Matthew McCord’s Motion for
Summary Judgment [DE 50] is DENIED AS MOOT;
(16) That, upon the Court’s own Motion and as suggested in
the pleadings of the parties, Robert L. Chenoweth is SUBSTITUTED
for Defendant Chenoweth Law Office;
22

(17) That Defendant Robert L. Chenoweth’s First Motion to

Dismiss for Lack of Jurisdiction [DE 29] and Motion to Dismiss
in

Response

to

Plaintiffs’

Amended

Summons

and

Reply

in

Support of Chenoweth Law Office’s Motion to Dismiss for Lack
of Jurisdiction [DE 59] are GRANTED;
(18) That Plaintiffs Minnie and Matthew McCord’s Motion

for Extension of Time Due to Excusable Neglect for the filing
of their response to the Motion to Quash, other responses, and
their amended summons and complaint [DE 51] is GRANTED IN PART
and DENIED IN PART;
(19) That Minnie and Matthew McCord’s responses to the

various motions are deemed timely filed.
(20) That

the

relief

requested

in

Plaintiffs

Minnie

and

Matthew McCord’s Motion to Deny Dismissal of Defendant Board of

Education

of

Fleming

County,

Defendant

Brian

Creasman,

Defendant Tom Price and Defendant Mark Leet [DE 61] is DENIED;
(21) That
Matthew

the

McCord’s

relief

Motion

requested

in

to

Dismissal

Deny

Plaintiffs

of

Minnie

and

Defendants

Kentucky Board of Education [DE 62] is DENIED;
(22) That the relief requested in Plaintiffs Minnie and

Matthew McCord’s Motion to Deny Dismissal of Robert Chenoweth
[DE 63] is DENIED;
23

(23) That

the

relief

requested

in

Plaintiffs

Minnie

and

Matthew McCord’s Notice [DE 76], to dismiss any pending state
law claims and to pursue only federal claims, is GRANTED;
(24) That all claims arising against any defendants in this
matter under Kentucky law are DISMISSED.
(25) That Plaintiffs Minnie and Matthew McCord’s Motion to
Amend Summons and Complaint [DE 78] is DENIED.
IT IS FURTHER ORDERED:
(26) That

Plaintiffs

Minnie

and

Matthew

McCord’s

request

for relief in their “Notice FRCP 5.1 Constitutional Challenge to
a

Statute”

[DE

47],

that

the

Court

notify

the

appropriate

attorney general that a statute has been questioned, is DENIED,
as Plaintiffs have raised claims claiming and seeking relief for
alleged violations of federal constitutional law by a variety of
defendants but have not challenged the constitutionality of any
statute in the various iterations of their complaint.
This the 31st day of March, 2017.

24