Gamble v. Commonwealth of Kentucky et al

Filing 6

MEMORANDUM AND OPINION by Judge John G. Heyburn, II on 1/3/13; For the reasons stated herein, the action will be dismissed by separate Order.cc: Plaintiff-pro se, Defendants (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:12CV-P480-H
BENNIE L. GAMBLE, JR.

PLAINTIFF

v.
COMMONWEALTH OF KENTUCKY et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff Bennie L. Gamble, Jr., filed the instant pro se 28 U.S.C. § 1983 action
proceeding in forma pauperis. This matter is before the Court on the initial review of the
complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997). For the reasons that follow, the action will be dismissed.
I.
Plaintiff is an inmate at the Northpoint Training Center. He sues the Commonwealth of
Kentucky; Senator Mitch McConnell; Governor Steve L. Beshear; Senator Rand Paul; Kentucky
Attorney General Jack Conway; and Steve Haney, the warden of the Northpoint Training Center.
Plaintiff states that he was arrested in Texas City, Texas, in 1997, brought to Paducah, Kentucky,
and accused of murder and first-degree robbery. He states that he was tried and convicted in
1999. He states that, on direct appeal to the Kentucky Supreme Court, his conviction was
reversed and remanded for a new trial for violating his right to “Equal Protection under the Equal
Protection Clause and the U.S. Constitution, and KY Constitution . . . as well as the Bill of
Rights, 16 Am. Jur 2d, Constitutional Law, and Federal Civil Judicial Procedure and Rules.”
Plaintiff further states, “My Civil, Declaration of Human Rights, Common Law, and Private
Rights are still being violated and grossly neglected, under 28 U.S.C. Title 18.” Plaintiff also
states that he has filed federal habeas corpus actions.

II.
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if the court determines that the complaint 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. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
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, --, 129 S. Ct. 1937, 1949 (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)). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555,
557).

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Although 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, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for 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.
A.

Federal claims
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.”). Therefore, Plaintiff’s claims for violation of his federal constitutional or
civil rights must be brought under § 1983 and not under the constitutional provisions themselves
or under other federal statutes.
Moreover, to the extent Plaintiff is attempting to bring claims under Title 18 of the
United States Code, which contains criminal statutes, only the Attorney General can determine

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“the question of whether and when prosecution is to be instituted . . . .” Powell v. Katzenbach,
359 F.2d 234, 235 (D.C. Cir. 1965), cert. denied, 384 U.S. 906 (1966). The Court does not have
the power to direct that criminal charges be filed. Peek v. Mitchell, 419 F.2d 575, 577-78 (6th
Cir. 1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972).
Plaintiff also states that his rights under the Universal Declaration of Human Rights
(UDHR) have been violated. The UDHR is not a treaty or international agreement which
imposes legal obligations. Rather, it is a statement of principles aimed at providing a common
standard for international human rights. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35
(2004). Because it is not enforceable in American courts, Plaintiff’s claims under the UDHR
will be dismissed. Furthermore, to the extent Plaintiff asserts a violation of his rights under “16
Am. Jur 2d,” the Court presumes that Plaintiff is referring to American Jurisprudence, which is a
legal reference material. It does not create rights or a cause of action.
1.

Commonwealth of Kentucky

The Commonwealth of Kentucky is immune from suit under the Eleventh Amendment
and is not a “person” subject to suit under § 1983. See Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989); Kentucky v. Graham, 473 U.S. 159, 169 (1985). Therefore, Plaintiff’s claims
against the Commonwealth will be dismissed for failure to state a claim upon which relief may
be granted.
2.

McConnell, Beshear, Paul, Conway, and Haney

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint “shall
contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). While the Court is aware of its duty to construe pro se complaints

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liberally, Plaintiff is not absolved of his duty to comply with the Federal Rules of Civil
Procedure by providing each Defendant with “fair notice of the basis for his claims.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). To state a claim for relief, Plaintiff
must show how each Defendant is accountable because the Defendant was personally involved
in the acts about which he complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976).
Plaintiff states no facts regarding the personal involvement of any of the individuals he names as
Defendants in the events giving rise to the complaint.
Moreover, to the extent Plaintiff seeks to hold any Defendant liable based on his
supervisory authority, the doctrine of respondeat superior, or the right to control employees,
does not apply in § 1983 actions to impute liability onto supervisors. Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 691 (1978); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th
Cir. 1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, to establish
supervisory liability in a § 1983 action, “[t]here must be a showing that the supervisor
encouraged the specific incident of misconduct or in some other way directly participated in it.
At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.” Bellamy, 729 F.2d at 421 (citing Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 87274 (6th Cir. 1982)). As Plaintiff has made no allegations against these Defendants, he fails to
establish a claim against any of them in their roles as supervisors.
Accordingly, Plaintiff fails to state a claim against Defendants McConnell, Beshear, Paul,
Conway, and Haney, and his claims against them will be dismissed.

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B.

State-law claims
Finally, Plaintiff alleges violation of his rights under the Kentucky Constitution. “The

district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Having
dismissed all federal claims over which the Court has original jurisdiction, the Court declines to
exercise supplemental jurisdiction over the remaining state-law claims. The state-law claims will
be dismissed without prejudice.
For the foregoing reasons, the action will be dismissed by separate Order.
Date:

January 3, 2013

cc:

Plaintiff, pro se
Defendants
4412.010

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