Faust v. Commonwealth of Kentucky

Filing 6

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 10/28/2015 - The court will grant the motion of the Commonwealth of Kentucky and Jack Conway, and dismiss the action. A separate order will be entered this date in accordance with this opinion. cc: Counsel, Plaintiff-pro se (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
PAUL BRYANT FAUST

PLAINTIFF

CIVIL ACTION NO. 3:15-CV-344-CRS

v.

COMMONWEALTH OF KENTUCKY, et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is before the court on motion to dismiss filed by defendants the
Commonwealth of Kentucky and Jack Conway (DN 4).
The complaint herein was filed pro se as a § 1983/ Bivens civil rights action, utilizing the
court’s standardized form provided for pro se prisoners. It appears that the plaintiff, Paul Bryan
Faust, is no longer incarcerated.
Faust names Jack Conway, Attorney General of the Commonwealth of Kentucky, in his
individual and official capacity, as the only defendant

(DN 1, p. 2).

He identifies the

Commonwealth of Kentucky in the caption of his suit. (DN 1, p. 1).
Faust recites that he was incarcerated in 2006 and in late 2008-early 2009. He states that
in 2008, he was held in solitary confinement for several months in “Louisville Metro
Corrections” under inhumane conditions.

Specifically, he alleges that he was continually

subjected to cold that amounted to torture. He alleges that he was again subjected to “cold cell
treatment” in the Simpson County Jail and at some unidentified location in late 2008-early 2009.

He claims that he also witnessed this “cold cell treatment” inflicted upon other prisoners while
he was acting as a grievance aide at “Northpoint.” DN 1, p. 4. He urges that this practice must
be stopped. DN 1, p. 5. Faust seeks an award of damages in the sum of $10M, punitive damages
in the sum of $100M, injunctive relief ordering that the practice cease statewide and
implementing safeguards, and education of the public about these occurrences. (DN 1, p. 6).
To overcome a motion to dismiss, a complaint must contain sufficient facts to state a
claim for relief that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As explained in Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009),
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. [Twombly, supra.] at 556, 127 S.Ct. 1955. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id.., at 557, 127 S.Ct. 1955 (bracket omitted).

The complaint does not allege that Attorney General Conway has performed any act
related to Faust, even affording leniency to Faust as a pro se litigant.1 Thus the complaint
wholly fails to state any claim against Conway upon which relief can be granted.
In any event, Conway is immune from suit in his individual capacity under the doctrine
of qualified immunity which protects him from damages for a public officer’s negligence in the
performance of discretionary acts or functions in good faith within the scope of that public
officer’s authority. Bolin v. Davis, 283 S.W.3d 752, 757-58 (Ky.App. 2008).

1

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

2

42 U.S.C. § 1983 authorizes suit against any any person who, under color of any state
statute deprives any citizen of rights, privileges, or immunities secured by the Constitution and
laws.

However, suit against the Commonwealth of Kentucky, and, by extension, against

Conway in his official capacity,2 is barred by the doctrine of sovereign immunity, as “[n]either a
State not its officials acting in their official capacities are ‘persons’ under § 1983.” Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Further, although “official-capacity
actions for prospective relief are not treated as actions against the State, “ Will, 491 U.S. at 71, n.
10 (quoting Kentucky v. Graham, 473 U.S. 159, 167, n. 14 (1985)), any such claim by Faust is
moot, due to his release from confinement. See Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir.
1998). Faust would derive no benefit from the relief requested, and he lacks standing to
vicariously assert the rights of others herein. See, Fore v. Godwin, 407 F.Supp 1145, 1147
(E.D.Va. 1976). (plaintiffs’ claims moot where no longer subject to conditions of which they
complaint; plaintiffs no longer residing in facility, issue may be properly litigated by persons
presently subjected to the conditions).
Finally, we note that the statute of limitations for § 1983 actions in Kentucky is one year.
Bonner v. Perry, 564 F.3d 424 (6th Cir. 2009), citing Collard v. Kentucky Bd. Of Nursing, 896
F.2d 179 (6th Cir. 1990). As the last event date recited by Faust was late 2008-early 2009, when
he was allegedly subjected to “cold cell treatment” during his incarceration, his claims are timebarred. To the extent that he alleges any other time frame during which an event allegedly
occurred, such as his purported witness of “cold cell treatment” while acting as a grievance aide
at “Northpoint,” such allegation fails to state a claim upon which relief may be granted under the
Twombly/Iqbal standard requiring sufficient facts to state a plausible claim. Faust alleges only

2

A public officer in Kentucky sued in his official capacity is afforded the same immunity as the governmental entity for which he
acts. Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001).

3

that he was an observer of such conditions at “Northpoint,” not that he was subjected to them.
Further, he does not say when this occurred nor has he named a “person” subject to suit under §
1983.
Therefore, for the reasons stated herein, the court will grant the motion of the
Commonwealth of Kentucky and Jack Conway, and dismiss the action. A separate order will be
entered this date in accordance with this opinion.

October 28, 2015

IT IS SO ORDERED.

C al R Smpo I , ei J d e
h r s . i sn I Sno u g
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I
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U i dSae Ds i C ut
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cc: Plaintiff, pro se
Counsel of Record

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