Marshall v. O'Connell et al

Filing 11

MEMORANDUM OPINION & ORDER by Judge John G. Heyburn, II on 10/17/13: IT IS HEREBY ORDERED that Plaintiffs request for an extension of time is DENIED. IT IS FURTHER ORDERED that the Commonwealths motion to dismiss is SUSTAINED and all claims against it are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs request for appointment of counsel is DENIED. cc:counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-802-H
CONNIE MARSHALL

PLAINTIFF

V.
MIKE O’CONNELL, COUNTY ATTORNEY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Defendant, the Commonwealth of Kentucky, has moved to dismiss the claims against it
on the limited grounds of sovereign immunity. For the reasons that follow, the Court agrees.
I.
Plaintiff, Connie Marshall, seeks ten million dollars ($10,000,000.00) against Jefferson
County Attorney Mike O’Connell, Louisville Metro Police Department, LMPD Chief of Police
Steve Conrad, Officer Brandon Hogan, Officer Edward Wagner, two unknown LMPD Officers
and the Commonwealth of Kentucky for violating her constitutional rights. Specifically, the
Plaintiff states in her Complaint that:
[T]he Louisville Metro Police have subjected the Plaintiff, Connie
Marshall to violations of state laws and unconstitutional practices,
including but not limited to Terroristic Threatening, Excessive force, the
filing of false charges, Racism, Set ups, Attempts to Set up, Stalking;
Conspiracy (Including Conspiracy w/intent to falsely imprison or place
Ms. Marshall in a mental institution to cover up their crimes), Defamation
Libel, Defamation Slander, Discrimination, Fraudulent Reports to the
Media, Failure to Assist, Trespassing, Harassment, Assaults, Wrongful
and False Imprisonment, Malicious Prosecution, Intimidation, Violation of
Color of Law, Violation of Civil Rights, Violation of Civil Liberties and
Violation of Human Rights.
The Defendants have tolerated this conduct through their failure to
supervise, train, investigate, and discipline police officers adequately
which has allowed the officers to violate the Plaintiff, Connie Marshall for

the past eight (8) years and before and continues to date.
The motion here concerns only Plaintiff’s claims against the Commonwealth.
II.
The Commonwealth argues that the claims against it must be dismissed for lack of
subject matter jurisdiction pursuant FRCP 12(b)(1). The Commonwealth, as a sovereign state, is
protected from suit by the Eleventh Amendment which states:
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.
This Court agrees the Eleventh Amendment bars a lawsuit against a state unless the state has
consented to suit. Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468,
480, 107 S.Ct. 2941, 2949-2950, 97 L.Ed.2d 389 (1987) (plurality opinion); see also Will v.
Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989);
Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-2329, 72 L.Ed.2d 694 (1982); Alabama
v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Mt. Healthy City
Bd. of Ed. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).
Here, the Commonwealth has not waived its sovereign immunity. In fact, the General
Assembly has codified its intent to immunize the Commonwealth from civil suit and to waive
that immunity only in the most limited of circumstances:
It is further the intention of the General Assembly to otherwise expressly
preserve the sovereign immunity of the Commonwealth, any of its
cabinets, departments, bureaus or agencies or any of its officers, agents or
employees while acting in the scope of their employment by the
Commonwealth or any of its cabinets, departments, bureaus or agencies in
all other situations except where sovereign immunity is specifically and
expressly waived as set forth by statute.
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1 KRS 44.072. No statute exists that would waive immunity in the present action.
Moreover, the statute under which the Plaintiff brings her action, 42 U.S.C. §1983,
appears to exclude the Commonwealth from liability. Section §1983 states that “every person”
who violates another person’s Constitutional rights shall be liable.
The United States Supreme Court has held that neither a state nor a state official, acting
in his official capacity, was a “person” subject to a §1983 suit.
Section 1983 provides a federal forum to remedy many deprivations
of civil liberties, but it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of civil
liberties. The Eleventh Amendment bars such suits unless the State has
waived its immunity, Welch v. Texas Dept. of Highways and Public
Transportation, 483 U.S. 468, 472-473, 107 S.Ct. 2941, 2945-2946, 97
L.Ed.2d 389 (1987) (plurality opinion), or unless Congress has exercised
its undoubted power under § 5 of the Fourteenth Amendment to override
that immunity. That Congress, in passing § 1983, had no intention to
disturb the States' Eleventh Amendment immunity and so to alter the
federal-state balance in that respect was made clear in our decision in
Quern. Given that a principal purpose behind the enactment of § 1983 was
to provide a federal forum for civil rights claims, and that Congress did
not provide such a federal forum for civil rights claims against States, we
cannot accept petitioner's argument that Congress intended nevertheless to
create a cause of action against States to be brought in state courts, which
are precisely the courts Congress sought to allow civil rights claimants to
avoid through § 1983. (Emphasis added).
Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). The Kentucky Supreme Court
has held similarly. Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 839 (Ky. 2004).
For the foregoing reasons, the Court concludes that Plaintiff cannot establish that the
Commonwealth has waived its sovereign immunity or consented to her lawsuit. Because this
issue is absolutely clear no additional briefing is required.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff’s request for an extension of time is DENIED.
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IT IS FURTHER ORDERED that the Commonwealth’s motion to dismiss is
SUSTAINED and all claims against it are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s request for appointment of counsel is
DENIED.

October 17, 2013

cc:

Connie Marshall, Pro Se
Counsel of Record

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