Phar v. Commonwealth of Kentucky (14th District Circuit Court)

Filing 9

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Plaintiff Ross "Word" Phar's 8 MOTION to Reconsider is DENIED; IT IS FURTHER ORDERED a copy of this Memorandum Opinion & Order be sent to Plaintiff at his listed address via first class U.S. Mail. Signed by Judge Joseph M. Hood on 5/11/2017.(KM)cc: COR, Pla via U.S. mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ROSS “WORD” PHAR,

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Plaintiff,
v.
COMMONWEALTH OF KENTUCKY, 14TH
DISTRICT CIRCUIT COURT,
Defendant.

Civil Case No.
5:17-cv-159-JMH
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court upon pro se Plaintiff Ross
“Word” Phar’s Motion to Reconsider [DE 8], in which he contests
the Court’s sua sponte screening and dismissal of the abovecaptioned

case

pursuant

to

28

U.S.C.

§

1915(e)(2).

In

its

Memorandum Opinion and Order of April 4, 2017 [DE 5], the Court
construed Plaintiff’s complaint as stating a claim for damages
under 42 U.S.C. 1983, then dismissed it with prejudice because the
named

Defendants

Amendment.

were

immune

from

suit

under

the

Eleventh

Plaintiff insists that the Court violated his Due

Process rights by dismissing the case without giving him an
opportunity to be heard.

He also contends that the Court’s

analysis was based on a misunderstanding of the Eleventh Amendment.
The Court will address each of these arguments in turn.

1

Pursuant to 28 U.S.C. § 1915(e)(2), courts are authorized to
conduct an initial screening of a complaint filed by a pro se
litigant seeking to proceed in forma pauperis.

Court are also

entitled to dismiss a complaint that is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief.
See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997),
overruled on other grounds by LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013)).
Although the United States Court of Appeals for the Sixth
Circuit has not addressed the constitutionality of sua sponte
dismissals under § 1915(e)(2), other circuits have held that this
procedure does not violate the procedural protections of the Fifth
Amendment’s Due Process Clause.

See Kiselis v. Suizzo, 491 F.

App’x 762, 763 (7th Cir. 2012) (“A sua sponte dismissal of a
meritless complaint that cannot be saved by amendment comports
with due process.”); Curley v. Perry, 246 F.3d 1278, 1283 (10th
Cir. 2001) (“We agree with the majority view that sua sponte
dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right
of access to the courts.”).

In this case, Plaintiff’s Complaint

could not be saved by amendment because the entities that he sued
were immune from the relief sought.

See Carter v. All Dist. Fed.

Judges, U.S.A., 441 F. App’x 859, 860 (3d Cir. 2011) (per curiam)
2

(concluding that amendment of the plaintiff’s complaint would be
futile because the defendants were immune from suit); Fiamengo v.
Wadsworth, 127 F. Appx’ 564, 565 (2d Cir. 2005) (same).

Thus, the

Court did not violate Plaintiff’s Due Process rights in dismissing
his Complaint with prejudice without allowing him an opportunity
to be heard.
As the Court observed in its previous Memorandum Opinion and
Order, “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State” under the Eleventh Amendment, unless the State
unequivocally consent to such a suit.
651, 663 (1974).

Edelman v. Jordan, 415 U.S.

The Supreme Court of the United States has also

applied this rule to entities that qualify as state agents and
state instrumentalities.

Id.; see also Regents of the Univ. of

Ca. v. Doe, 519 U.S. 425, 429 (1997).
Plaintiff complains that the Court founded its analysis on a
flawed

interpretation

of

constitutional

law,

one

“based

on

precedent and ‘case law’ rather than the original intent of the
founding

fathers

Declaration
Constitution

of
of

when

they

penned

Independence.”
the

United

[DE

States

the
8
not

U.S.
at

Constitution

1].

only

and

However,

the

contemplates

the

creation of the Supreme Court of the United States and other
federal courts, it also vests them with jurisdiction to hear, inter
alia, cases “arising under this Constitution.”
3

U.S. Const. Art.

III, § 1-2.

In order to perform that function, federal courts

must be able “to exercise judicial review and interpret the
Constitution.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-

41 (2006) (citing Marbury v. Madison, 1 Cranch 137, 177 (1803)
(“Those who apply the rule to particular cases, must of necessity
expound and interpret that rule.”).

Thus, it was not error for

this Court to rely on Supreme Court case law interpreting the
Constitution in rendering its decision.
As

a

final

matter,

the

Court

wishes

to

clarify

that

Plaintiff’s Complaint was not dismissed on grounds of frivolity or
maliciousness.
concerns.

The Court understands and appreciates Plaintiff’s

However, it ultimately found it necessary to dismiss

Plaintiff’s Complaint with prejudice because the law simply does
not

allow

Defendants.

him

to

recover

monetary

damages

from

the

named

That conclusion remains the same, for the reasons

stated above and in the Court’s prior Memorandum Opinion and Order.
Accordingly, for the reasons stated herein,
IT IS ORDERED that Plaintiff Ross “Word” Phar’s Motion to
Reconsider [DE 8] be, and is hereby, DENIED.
IT IS FURTHER ORDERED that a copy of this Memorandum Opinion
and Order be sent to Plaintiff at his listed address via first
class U.S. Mail.
This the 11th day of May, 2017.

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