Freeman v. Commonwealth of Kentucky et al
Filing
47
MEMORANDUM AND OPINION by Judge David J. Hale on 5/19/2018. For the foregoing reasons, the instant action will be dismissed by separate Order. cc: Counsel, Pro Se Plaintiff (MEJ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
KIMBERLY FREEMAN,
Plaintiff,
v.
Civil Action No. 3:17-cv-782-DJH
COMMONWEALTH OF KENTUCKY et al.,
Defendants.
* * * * *
MEMORANDUM OPINION
Plaintiff Kimberly Freeman filed the instant pro se action proceeding in forma pauperis.
This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) 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 set forth below, the action will be dismissed.
I.
Plaintiff filed her complaint on the Court-approved complaint form for filing a civil case
(Docket No. 1). She lists the following Defendants: Commonwealth of Kentucky; “Kroger Mud
Lane & Kroger Stores”; “City of Louisville & Local Businesses”; and “6506 Essex Ave. &
Neighbors on Essex.” As the basis for this Court’s jurisdiction, Plaintiff indicates diversity of
citizenship. Where the form asks for the basis of federal question jurisdiction, she states,
“Retaliation, Discrimination.” In the “Statement-of-Claim” section, Plaintiff states that she has
experienced retaliation, discrimination, property damage, mail theft, fraud, and identity theft. As
relief, she seeks, “For charges to be made. Appeal to be granted and lawsuit issued to defendants
A Payout.” She attaches a “Complaint Management System Report discrimination” form which
she completed. It indicates that she was discriminated against at a Dollar Tree store.
Plaintiff filed nine motions to amend the complaint or documents which were docketed as
amended complaints. For purposes of this initial screening, the Court has reviewed each
purported amendment and will consider them as amendments. In the first amended complaint
(DN 12), Plaintiff cites to Fed. R. Civ. P. 4 and refers to summonses, attaches a receipt for what
appears to be postage stamps from the U.S. Postal Service, and names some existing Defendants
and some new Defendants listed as follows: various location of Kroger stores; various locations
of Walmart and Walmart Neighborhood stores; various locations of Dollar Tree stores; two
locations of Cash America Pawn; J and M Pawn; “T-Mobile Stores in Louisville”; two Cricket
Wireless locations; Verizon Wireless; “Time Warner Cable All locations”; “The Home Depo”;
Winner Furniture; HH Gregg; Fenny Brothers Warrantec; Derby City Traders Flea Market; Best
Buy Motors; United States Postal Service; “Choice Hotels and Wyndham Hotels”; US Bank;
Taco Bell; “Louisville Free Public Library All Locations”; Sears Home Warranty; “Steak N
Shake All locations”; Brittney Coleman; Kimberly J; Amber Pac; James Thomas; four addresses
on Essex Avenue; and “4200 Lees Lane.” The amended complaint states no new factual or legal
claims against the listed Defendants. Therefore, the Court construes the filing as seeking to add
or clarify the Defendants to this action.
Plaintiff filed a second amended complaint (DN 14), presumably against the same
Defendants although not entirely clear, alleging “Discrimination, Retaliation case numbers
submitted in evidence with letters of harassment, retaliation. My family was involved in this
claim/case. . . . CPA, FTC, US Postal inspector, FBI, LMPD.” She filed a third amendment
(DN 15) naming as Defendants “6121 Greenwood Rd, Louisville, Ky 40258, P.O. Box 581864
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Louisville, Ky 40268 Goolgle, gmail” 1 and alleging “violation of ‘civil rights.’ 1964 Act . . .
Defendants have retaliated against me, discriminated against me. Harrassed me, Hacked several
accounts, Mail, Email, Personal accounts, Phone.” She seeks relief in the form of “relief of
harrassment, relief of tampering with idenity and accounts. Releif of tresspassing defendants.
Relief of fraud, vandalism mail theft, relief of breaking and entering, accounts, phone mail box.
Relief of retaliation, discrimination.” Plaintiff’s fourth amended complaint (DN 19) names the
Commonwealth of Kentucky, Days Inn, Red Roof Inn, Murphy USA, and the Louisville Free
Public Library and alleges claims of retaliation and discrimination similar to those alleged
previously. Her fifth motion to amend the complaint (DN 27) names Dollar Tree Stores; Cashier
Tina; “Surrounding neighbors on Essex”; “Daytona Ave”; and “Lees Lane” and alleges similar
claims as those alleged previously. Plaintiff’s sixth, seventh, eighth, and ninth amended
complaints (DNs 28, 36, 37, and 38) continue in the same vein, naming a variety of local
businesses and making broad allegations of retaliation, discrimination, and harassment.
II.
Because Plaintiff is proceeding in forma pauperis, the Court must review the complaint
under 28 U.S.C. § 1915(e). McGore v. Wrigglesworth, 114 F.3d at 608-09. On review, 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] 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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The Court considers as named Defendants those listed in the case captions of Plaintiff’s purported amendments.
Due to the volume of filings by Plaintiff, the Court will not characterize the entirety of each filing but will attempt to
summarize the necessary information for the purpose of initial screening.
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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)). Although courts are to hold pro se pleadings “to less stringent standards
than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519 (1972), this duty to
be less stringent “does not require us 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 courts “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.
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
Fed. R. Civ. P. 8(a). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). “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.’” Id. (quoting
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Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 557). Conclusory allegations or bare legal
conclusions will not suffice as factual allegations. Followell v. Mills, 317 F. App’x 501, 505 (6th
Cir. 2009) (“Conclusory allegations or legal conclusions masquerading as factual allegations will
not suffice.”); Gregory v. Shelby Cty., Tenn., 220 F.3d 433, 446 (6th Cir. 2000) (“[W]e need not
accept as true legal conclusions or unwarranted factual inferences.”).
Upon the Court’s review of the original complaint and each of the nine amendments,
Plaintiff makes broad legal conclusions, such as discrimination and retaliation, against what
appear to be businesses, locations, and individuals she encounters in her day-to-day activities.
Nowhere in the complaint or amendments does she state factual allegations supporting her broad
claims that, if accepted as true, state “‘a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). Plaintiff likewise
fails to place any Defendants on notice as to the claim(s) against them. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002) (indicating that the short and plain statement of a claim must
“‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests’”) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 544). The pleadings, therefore, do not present a sufficient
factual basis to state a claim against any of the named Defendants, and they fail to meet the basic
pleading standard required by Fed. R. Civ. P. 8(a)(2).
Furthermore, “a district court may, at any time, sua sponte dismiss a complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous,
devoid of merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.
1999). The complaint and amendments meet this standard, as well.
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In addition to the motions to amend the complaint, Plaintiff also filed two criminal
complaints. The first is purportedly against “CITI TRENDS CASHIER 4043805 V. Morris”
(DN 25); and the second is purportedly against “Walmart Customer [illegible] Female Coffee
isle” (DN 32). However, Plaintiff cannot file a criminal complaint in this Court. “It 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 authority to initiate federal criminal
charges. See 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.”); Sahagian v. Dickey, 646
F. Supp. 1502, 1506 (W.D. Wis. 1986) (“Authority to initiate a criminal complaint rests
exclusively with state and federal prosecutors; whether to bring such a complaint is generally
within the discretion of the prosecutor. This court does not have jurisdiction to order that a
criminal complaint be filed.”). Because Plaintiff is a private citizen, she cannot initiate criminal
charges against anyone, and the criminal complaints also warrant dismissal.
Finally, Plaintiff filed fourteen documents that were docketed as letters, evidence, notices
of filing, affidavits, and statements (DNs 6, 7, 8, 16, 20, 21, 22, 23, 24, 39, 40, 41, 43, and 44).
Many of the documents show no relevance to this action or give any indication for what purpose
they were filed. For example, she filed “Evidence” which consists of a coupon for Butterball
turkey products (DN 6). In any event, the Court has reviewed each of these filings and finds that
they do not state actionable claims or give any reason to conclude that this action should not be
dismissed for the reasons stated herein.
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For the foregoing reasons, the instant action will be dismissed by separate Order.
Date:
May 19, 2018
David J. Hale, Judge
United States District Court
cc:
Plaintiff, pro se
Counsel of record
4415.010
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