Thomas v. Barnhardt et al

Filing 40

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 9/10/2020 granting 33 Motion for Extension of Time to Amend. Clerk of Court DIRECTED to modify docket entry of DN 34 to reflect that it is a second amended complaint. Fo r the reasons set forth herein, Plaintiff's claims against the Defendants Kentucky Personnel Board, the Energy & Environmental Cabinet, the South Central Community & Technical College, Mack-Brown, Lewis, Clark, and the "Anonymous False A ccusers" are DISMISSED. Plaintiff's claims alleging falsification or alteration of reports, any claims alleging criminal conduct, and all state-law claims are DISMISSED. Clerk of Court is DIRECTED to terminate Defendants Kentucky Perso nnel Board, the Energy & Environmental Cabinet, the South Central Community & Technical College, Mack-Brown, Lewis, Clark, and the "Anonymous False Accusers" as parties to the action. The Court will enter a separate Order directing service on Defendant Bernhardt. cc: Plaintiff, pro se; Defendants (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN

CHRISTOPHER DALTON THOMAS
v.

PLAINTIFF
CIVIL ACTION NO. 1:19CV-157-GNS

DAVID L. BERNHARDT et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Dalton Thomas filed the instant pro se action proceeding in forma
pauperis.
By prior Order (DN 32), the Court directed Plaintiff to file an amended complaint stating
all claims he wished to assert in this action and naming all Defendants he wished to sue within
30 days. The Court also instructed that the amended complaint would supersede the original
complaint and all prior purported amendments and motions to amend. Plaintiff filed a motion for
extension of time to file an amended complaint. Upon review, IT IS ORDERED that the
motion for extension of time (DN 33) is GRANTED.
Plaintiff has now filed an amended complaint (DN 34). Because he filed a prior amended
complaint, the Clerk of Court is DIRECTED to modify the docket entry of DN 34 to reflect
that it is a second amended complaint.
This matter is now before the Court upon initial review of the second amended complaint
(DN 34) pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that
follow, the Court will dismiss some of the claims and allow some claims to proceed for further
development.

I. SUMMARY OF ALLEGATIONS
Plaintiff alleges employment discrimination, retaliation, hostile work environment,
defamation, libel, and other claims. He sues the following Defendants: David L. Bernhardt, the
Secretary of the Department of Interior; the Kentucky Personnel Board; Aarika Mack-Brown, an
Administrative Judge with the Equal Employment Opportunity Commission (EEOC); the
Kentucky Energy & Environmental Cabinet; South Central Community & Technical College;
Leslie Lewis and Christopher Clark, Plaintiff’s supervisors at Mammoth Cave National Park;
and “Anonymous False Accusers.”
The complaint is lengthy and makes a variety of allegations. Plaintiff summarizes his
complaint in the “Background” section as follows:
An employment discrimination appeal from 2014 with the Kentucky Personnel
Board (Appeal 2013-291, Document #5) has resulted in a chain reaction of serious
problems because the ruling is online and full of misinformation. Make-believe
accusations of sexual harassment in the related order have rendered me
unemployable. The lies keep getting bigger as they are perpetuated through the
employment system and civil appeals process. In 2017 after coworkers at
Mammoth Cave (MACA) found the appeal in a google search I was terminated
from federal employment and my federal employment records were also falsified.
I was terminated from my Biology teaching position from South Central
Community Technical College (SKYCTC) when they found out about my
investigation with MACA. Now I have lost additional jobs and my life is wrecked.
Plaintiff further states in the “Background” section:
I am seeking a full formal exoneration from all related accusations (Doc. 20),
compensation for DEFAMATION OF CHARACTER, libel, emotional distress,
lost wages/employment loss, legal fees, loss of liberty, etc. I am seeking
recognition of discrimination in both related cases. I am also seeking formal
dismissal of both related civil rulings involving the EEOC ruling in case 470-201900060x (Doc. 5 & 15) & KY Personnel Board Appeal 2013-291 (Doc.18). The
slanderous rulings are such a gross distortion of the truth. I consider them both to
be a form of criminal libel. Most of the primary issues are simple but the story is
complex and has been ongoing since Dec. 2013. I will attempt to describe the
events in chronological order. Related issues include multiple job losses, multiple
levels of retaliation & discrimination, falsification & alteration of records,
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harassment, negligence, slander, due process violations, FOIA violations, hostile
environment, etc. I am seeking compensation for all of this.
In the next section, which Plaintiff titles, “Claim Summary,” Plaintiff alleges the
following claims: defamation of character; emotional distress; falsification of federal
employment record; discrimination based on “gender, disability, reprisal”; retaliation;
negligence; due process violations; “Alteration of Records and/or Civil Rights Fraud”;
harassment; hostile work environment; libel; “Potential Constitutional Rights Violations”; and
“Illegitimate & Prejudiced EEOC Court Proceeding.”
II. STANDARD
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, the Court must dismiss
a case at any time if it determines that an 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. See 28 U.S.C. § 1915(e)(2)(B). This Court recognizes that pro se pleadings are
to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the
duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979).
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.’”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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, 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, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)).
III. ANALYSIS
A. Division of Forestry termination and Kentucky Personnel Board decision
Plaintiff alleges that he worked for the Kentucky Division of Forestry (KDOF) and was
terminated in December 2013. He states, “I am requesting that the ruling in Appeal 2013-291 is
set aside & the discrimination recognized in my Dec. 2013 termination from the Kentucky
Division of Forestry.” Plaintiff states that, while employed at the KDOF, he complained about
safety issues after he suffered a fall. He states that his “coworkers conspired against me to
falsely accuse me of obscene sexual harassment allegations and I was terminated. The women
on the crew were creating dangerous and hostile work environments and fraudulently accusing
me.” He details the situation surrounding his termination. Plaintiff alleges, “It is my
constitutional right to report discrimination, unsafe working conditions or violations of the law in
employment free from retaliation. Even the Personnel Board retaliated against me for filing this
appeal by further slandering me in a permanent form.” He points out numerous “lies” stated in
the Kentucky Personnel Board’s Recommended Order made in 2014 and maintains, “The facts
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establish that the individuals responsible for this are slanderers & this ruling is fraudulent. I
believe the act of intentionally misconstruing all the relevant facts in a case like this is criminal.”
He further asserts, “I made a whistleblower complaint about serious safety concerns that resulted
in falling off the side of a cliff. It was validated by management. I was exercising my legal right
to protect myself and they retaliated and falsely accused me of obscene sexual harassment
claims.” (Emphasis by Plaintiff omitted.)
With regard to the Kentucky Personnel Board, the Court construes the second amended
complaint as alleging that the Kentucky Personnel Board violated his constitutional rights in
conducting the hearing and issuing its findings. A claim for violation of constitutional rights
must be brought under 42 U.S.C. § 1983. See Thomas v. Shipka, 818 F.2d 496, 500 (6th Cir.
1987), vacated and remanded on other grounds, 488 U.S. 1036 (1989) (“[I]t is unnecessary and
needlessly redundant to imply a cause of action arising directly under the Constitution where
Congress has already provided a statutory remedy of equal effectiveness through which the
plaintiff could have vindicated her constitutional rights.”).
The statute of limitations for § 1983 actions is governed by the limitations period for
personal-injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S.
384, 387 (2007). In Kentucky, § 1983 actions are limited by the one-year statute of limitations
found in Ky. Rev. Stat. § 413.140(1)(a). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th
Cir. 1990). Although state law establishes the statute of limitations for § 1983 actions, federal
law controls on the issue of when the statute of limitations begins to run. Sevier v. Turner, 742
F.2d 262, 272 (6th Cir. 1984). Federal law establishes that the § 1983 statute of limitations
accrues when the plaintiff knew or should have known of the injury that forms the basis of the
claim alleged in the complaint. Estate of Abdullah ex rel. Carswell v. Arena, 601 F. App’x 389,
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393-94 (6th Cir. 2015) (“Once the plaintiff knows he has been hurt and who has inflicted the
injury, the claim accrues.”) (internal quotation marks omitted) (citing United States v. Kubrick,
444 U.S. 111, 122 (1979)); Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). When the face of
the complaint shows that an action is time-barred, the case may be dismissed summarily upon
initial screening. Jones v. Bock, 549 U.S. 199, 215 (2007).
Plaintiff attached the Kentucky Personnel Board’s “Final Order Sustaining the Hearing
Officer’s Findings of Fact, Conclusions of Law and Recommended Order as Altered” to his first
amended complaint (DN 5). The Final Order is dated July 16, 2014. Therefore, the statute of
limitations for Plaintiff’s § 1983 claims expired one year later on July 16, 2015. Plaintiff filed
the original complaint on October 29, 2019. Therefore, Plaintiff filed his complaint over four
years after the statute of limitations expired. Even if Plaintiff were to argue that he became
aware of the injury when he was terminated from his employment with Mammoth Cave after coworkers there discovered the Kentucky Personnel Board decision on-line, Plaintiff attached his
termination letter from Mammoth Cave to his first amended complaint (DN 5). The letter is
dated July 27, 2017. Therefore, the statute of limitations would have expired on July 27, 2018,
more than a year before Plaintiff filed the instant action on October 29, 2019. Therefore, the
claim would still be barred by the one-year statute of limitations. Accordingly, the § 1983 claims
must be dismissed as frivolous.
To the extent that Plaintiff brings state-law claims for defamation of character and libel
against the Kentucky Personnel Board, the statute of limitations for bringing those claims is also
one year. See Bargo v. Goodwill Indus. of Ky., Inc., 969 F. Supp. 2d 819, 829 (E.D. Ky. 2013)
(“[T]he one-year statute of limitations applies to Plaintiffs’ false light and defamation claims.”);
Ky. Rev. Stat. § 413.140(1)(d). A cause of action for defamation accrues at the time of
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publication, not when the plaintiff learns or should learn of its existence. Lashlee v. Sumner, 570
F.2d 107, 109 (6th Cir. 1978); see also Caslin v. Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky. Ct.
App. 1980) (“[I]t is the publication of the alleged libelous matter that causes the defamation or
injury thus commencing the running of the one year statute of limitations provided by KRS
413.140(1)(d).”).
The publication of the alleged libelous matter would presumably have been the issuance
of the Kentucky Personnel Board’s decision which Plaintiff claims harms him. Once again, the
Final Order was issued on July 16, 2014. Therefore, Plaintiff’s state-law claims are also barred
by the statute of limitations.
Moreover, to the extent Plaintiff seeks “formal dismissal” of the Kentucky Personnel
Board’s ruling in his case, this Court does not have authority to hear an appeal from a decision
by the Kentucky Personnel Board. Kentucky Revised Statute § 13B.140 provides as follows:
All final orders of an agency shall be subject to judicial review in accordance with
the provisions of this chapter. A party shall institute an appeal by filing a petition
in the Circuit Court of venue, as provided in the agency’s enabling statutes, within
thirty (30) days after the final order of the agency is mailed or delivered by personal
service.
Any judicial review of the Kentucky Personnel Board’s decision must have been undertaken by a
Kentucky circuit court and not by this federal court.
Plaintiff does not sue the Division of Forestry, but he does sue the Energy &
Environmental Cabinet. To the extent that Plaintiff sues the Energy & Environmental Cabinet
for employment discrimination, retaliation, and harassment based on his termination, even if
these claims were not also barred by the statute of limitations, such claims are brought under
Title VII of the Civil Rights Act of 1964. Under Title VII, it is unlawful for any employer “to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
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individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C.
§ 2000e-2(a)(1). Title VII also “prohibits an employer from retaliating against an employee who
has ‘opposed’ any practice by the employer made unlawful under Title VII[.]” Johnson v. Univ.
of Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000).
Before an employee may file suit under Title VII, he or she must first exhaust his or her
administrative remedies with the EEOC. Granderson v. Univ. of Mich., 211 F. App’x 398, 400
(6th Cir. 2006). “Only after . . . the plaintiff has obtained a ‘right to sue’ letter from the EEOC,
may he or she bring a Title VII action in court.” Patterson v. McLean Credit Union, 491 U.S.
164, 180-81 (1989); Granderson, 211 F. App’x at 400 (“The proper exhaustion of administrative
remedies gives the Title VII plaintiff a green light to bring an employment-discrimination claim
in court.”). To that end, “[i]t is well settled that a plaintiff must satisfy two prerequisites before
filing a Title VII action in federal court: (1) timely file a charge of employment discrimination
with the EEOC; and (2) receive and act upon the EEOC’s statutory notice of the right to sue
(‘right-to-sue letter’).” Id. (citing Puckett v. Tenn. Eastman Co., 889 F.2d 1481, 1486 (6th Cir.
1989)).
Plaintiff does not allege that he filed a charge of employment discrimination with the
EEOC related to his termination from the Energy & Environmental Cabinet. He therefore did
not obtain a right-to-letter from the EEOC. See EEOC v. Frank’s Nursery & Crafts, Inc., 177
F.3d 448, 456 (6th Cir. 1999) (“An individual may not file suit under Title VII if []he does not
possess a ‘right to sue’ letter from the EEOC.”). Accordingly, Plaintiff’s claims for
discrimination, retaliation, and harassment against the Energy & Environmental Cabinet must be
dismissed for failure to exhaust administrative remedies.
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For the foregoing reasons, all claims against the Kentucky Personnel Board and the
Energy & Environmental Cabinet will be dismissed.
B. South Central Community & Technical College termination
Plaintiff also names as a Defendant South Central Community & Technical College.
The only reference to this Defendant in the body of the complaint is the following: “I was
terminated from my Biology teaching position from South Central Community & Technical
College . . . when they found out about my investigation with MACA.” Plaintiff states no other
facts concerning this Defendant. While the Court has a duty to construe pro se complaints
liberally, Plaintiff is not absolved of his duty to comply with the Federal Rules of Civil
Procedure by providing Defendants with “fair notice of the basis for [his] claims.” Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 514 (2002). Federal Rule of Civil Procedure 8(a) requires a
pleading to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief[.]” Plaintiff’s one sentence statement concerning South Central Community &
Technical College is too scant to state a claim. The Court cannot even discern what claims
Plaintiff is attempting to assert against it.
Therefore, the claims against South Central Community & Technical College will be
dismissed for failure to state a claim upon which relief may be granted.
C. Falsification of employment records and alteration of records
Plaintiff alleges claims for falsification and alteration of his employment records. He
cites no legal authority to support a private cause of action for these claims, and the Court is not
aware of any. Therefore, Plaintiff’s claims for falsification and alteration of records will be
dismissed for failure to state a claim upon which relief may be granted.

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D. Criminal charges
Plaintiff makes several references in the complaint to what he believes to be criminal
conduct by Defendants. As the Court instructed in its prior Order (DN 30), “[i]t is well settled
that the question of whether and when prosecution is to be instituted is within the discretion of
the Attorney General.” Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965). Only federal
prosecutors, and not private citizens, have the authority to initiate federal criminal charges.
Sahagian v. Dickey, 646 F. Supp. 1502, 1506 (W.D. Wis. 1986); see also United States v. Nixon,
418 U.S. 683, 693 (1974) (“Executive Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.”); Saro v. Brown, 11 F. App’x 387, 388 (6th Cir. 2001) (“A
private citizen has no authority to initiate a federal criminal prosecution; that power is vested
exclusively in the executive branch.”). Plaintiff is a private citizen and cannot bring criminal
charges against anyone.
Therefore, to the extent that Plaintiff is seeking to assert criminal claims against any
Defendant, the claims will be dismissed for failure to state a claim upon which relief may be
granted.
E. Mammoth Cave termination and EEOC hearing
Upon review, the Court will allow Plaintiff’s Title VII claim to continue based on his
termination from Mammoth Cave. However, the only appropriate defendant in an employment
discrimination action against the federal government or any of its agencies is “the head of the
department, agency or unit, as appropriate.” 42 U.S.C. § 2000e-16(c). Therefore, the only
proper defendant to the Title VII claim is Defendant Bernhardt. Therefore, any claims for
discrimination, retaliation, and harassment against Defendants Lewis, Clark, and the

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“Anonymous False Accusers” will be dismissed for failure to state a claim upon which relief
may be granted.
Moreover, Plaintiff also alleges constitutional violations against Defendant Mack-Brown,
the EEOC administrative law judge, in the handling of his EEOC hearing after he was terminated
from Mammoth Cave. However, federal administrative judges are entitled to absolute judicial
immunity. Smith v. Shook, 237 F.3d 1322, 1325 (11th Cir. 2001) (citing Butz v. Economou, 438
U.S. 478, 513 (1978)). Therefore, all claims against Defendant Mack-Brown will be dismissed
for failure to state a claim upon which relief may be granted.
Furthermore, with regard to Defendant Lewis, Plaintiff states the following:
My second line supervisor, L. Lewis, then wrote a defamatory termination memo
and I was terminated for “inappropriate use of cell phone camera with park guests”
to imply I was a pervert who videotaped women and children under my lunch table.
L. Lewis went on in the memo to further defame me and label me as a detriment to
society. This was all being further motivated by the old discrimination appeal that
they perceived as sexual harassment.
The Court construes Plaintiff’s allegations against Defendant Lewis as asserting claims for libel
and defamation. As discussed above, the statute of limitations for defamation and libel claims is
one year. See Bargo v. Goodwill Indus. of Ky., Inc., 969 F. Supp. 2d at 829; Ky. Rev. Stat.
§ 413.140(1)(d). A cause of action for defamation accrues at the time of publication, not when
the plaintiff learns or should learn of its existence. Lashlee v. Sumner, 570 F.2d at 109; see also
Caslin v. Gen. Elec. Co., 608 S.W.2d at 70. The letter from Defendant Lewis terminating
Plaintiff is dated July 27, 2017. Therefore, the statute of limitations expired on July 28, 2018.
Plaintiff filed his original complaint on October 29, 2019. Plaintiff’s libel and defamation claims
against Defendant Lewis are therefore barred by the statute of limitations and must be dismissed
as frivolous.

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IV. ORDER
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s claims against the Defendants Kentucky Personnel
Board, the Energy & Environmental Cabinet, the South Central Community & Technical
College, Mack-Brown, Lewis, Clark, and the “Anonymous False Accusers” are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be
granted.
Additionally, IT IS FURTHER ORDERED that Plaintiff’s claims alleging falsification
or alteration of reports, any claims alleging criminal conduct, and all state-law claims are
DISMISSED for failure to state a claim upon which relief may be granted.
The Clerk of Court is DIRECTED to terminate Defendants Kentucky Personnel Board,
the Energy & Environmental Cabinet, the South Central Community & Technical College,
Mack-Brown, Lewis, Clark, and the “Anonymous False Accusers” as parties to the action.
The Court has allowed Plaintiff’s Title VII claim against Defendant Bernhardt to proceed
for further development. In allowing the claim to proceed, the Court passes no judgment on the
outcome or ultimate merit.
The Court will enter a separate Order directing service on Defendant Bernhardt.
Date:

September 10, 2020

cc:

Plaintiff, pro se
Defendants
4416.010

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