Thomas v. Kentuckys' State Guardian System

Filing 8

MEMORANDUM OPINION by Judge Greg N. Stivers on 10/17/2017. For reasons stated within this Memorandum Opinion, this action will be dismissed by separate order.cc:Plaintiff; Defendant; General Counsel, Justice & Public Safety Cabinet (JWM) Modified to add distribution on 10/17/2017 (JWM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
ROBERT LEE THOMAS, JR.

PLAINTIFF

v.

CIVIL ACTION NO. 1:17CV-93-GNS

KENTUCKY’S STATE GUARDIAN SYSTEM

DEFENDANT

MEMORANDUM OPINION
Plaintiff Robert Lee Thomas, Jr., proceeding pro se, filed a complaint (DN 1) on his own
paper. Subsequently, the Clerk of Court sent Plaintiff a deficiency notice which, in part, directed
Plaintiff to resubmit this action on the appropriate form. Thereafter, Plaintiff filed this action on
a 42 U.S.C. § 1983 form (DN 4). The complaint (DNs 1 & 4) is before the Court for screening
pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that
follow, this action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff describes himself as being “disabled” and “[t]ormented.” Plaintiff names
“Kentuckys State Guardian System” as the sole Defendant in this action. In his complaint,
Plaintiff states that he “asked for state guardianship which was a big mistake. Thier
incompetence is unbearable. I thought I’d get better care than the county where ‘crack’ was
invented-McCRACKEN County.” Plaintiff states that he has had four guardians. According to
Plaintiff, “[t]he first guardian appointed by McCracken County Court in Paducah made my
$2,000.00 disappear right after he said on the phone to come and get it . . . .” This first guardian,
Plaintiff complains, “didnt even get my rent subsidized.” Plaintiff states that the second guardian
“went out of business to go back to school or something, and made my valuable 1937 dollar bill

disappear . . . .” According to Plaintiff, the third guardian “promised to put ALL of my
belongings in storage if I went with them, which they did not . . . [she did] more harm than
good . . . they ALL lied to me, approx. $7,000.00 work of damages.” Plaintiff further states that
the third guardian lost the only pictures of Plaintiff’s mother and “left [Plaintiff’s] $1,700.00
motor scooter.” According to Plaintiff, the fourth and present guardian “is holding me back from
getting an apt. issued to me . . . he said its because I write letters to federal authorities trying to
have them investigated.” Further, Plaintiff states that “[t]hey took away my established
apartment and have me doing time in a mental institution overflow facility.” As relief, Plaintiff
seeks monetary damages, “FREEDOM FROM GUARDIANSHIP,” and a “subsidized rent
apartment.”
II. STANDARD OF REVIEW
Upon review under 28 U.S.C. § 1915(e)(2), a district court must dismiss a case at any
time if it determines that the action is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory
or where the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for
failure to state a claim, “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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,

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561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not require [it]
to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create
a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require the Court “to explore exhaustively all potential
claims of a pro se plaintiff, [and] would also transform the district court from its legitimate
advisory role to the improper role of an advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.
1985).
III. LEGAL ANALYSIS
Title 42, United States Code, Section 1983 creates no substantive rights, but merely
provides remedies for deprivations of rights established elsewhere. As such, it has two basic
requirements: (1) the deprivation of federal statutory or constitutional rights by (2) a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flint v. Ky. Dep’t of
Corr., 270 F.3d 340, 351 (6th Cir. 2001). Plaintiff does not bring this action against a person,
but against “Kentuckys State Guardian System.” Thus, this § 1983 action fails. “Kentucky’s
Public guardianship program is administered by the Division of Guardianship in the Cabinet for
Health and Family Services.” See http://chfs.ky.gov/dail/guardianship.htm. Even if the Court
were to construe this action as being brought against the Cabinet for Health and Family Services
(“Cabinet”), it fails.

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A state and its agencies are not “persons” subject to suit under § 1983. Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Sefa v. Kentucky, 510 F. App’x 435, 437
(6th Cir. 2013) (“The Cabinet [for Health and Family Services] is not a ‘person’ subject to suit
under section 1983.”). Additionally, a state and its agencies may not be sued in federal court,
regardless of the relief sought, unless the state has waived its sovereign immunity under the
Eleventh Amendment1 or Congress has overridden it. Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 124 (1984); Alabama v. Pugh, 438 U.S. 78l, 782 (l978). In enacting § l983,
Congress did not intend to override the traditional sovereign immunity of the states. Whittington
v. Milby, 928 F.2d l88, 193-94 (6th Cir. 1991) (citing Quern v. Jordan, 440 U.S. 332, 341
(l979)). Thus, the Eleventh Amendment acts as a bar to all claims for relief against the Cabinet.
See Sefa v. Kentucky, 510 F. App’x at 437 (“Because Kentucky has not waived its Eleventh
Amendment immunity and Congress has not abrogated state sovereign immunity under sections
1981 and 1983 . . . [plaintiff’s] claims against the Cabinet cannot proceed.”).
Accordingly, this action will be dismissed by separate Order.
Date:

October 17, 2017

Greg N. Stivers, Judge

cc:

Plaintiff, pro se
United States District Court
Defendant
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4416.003

1

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI. “While the Amendment by its terms does not bar suits against a State by its own
citizens, [the Supreme Court] has consistently held that an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63
(1974).

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