Smither v. Vonckx et al

Filing 6

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on initial review pursuant to 28 U.S.C. § 1915A. The Court will, by separate Order, dismiss Plaintiffs claims. The Clerk of Court is DIRECTED to send a 28 U.S.C. § 2254 packet to Plaintiff. cc: Plaintiff, pro se (w/ 2254 packet); Defendants (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
JORDAN SMITHER

PLAINTIFF

v.

CIVIL ACTION NO. 4:14-CV-P121-JHM

DEREK VONCKX et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Jordan Smither, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A 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. SUMMARY OF CLAIMS
Plaintiff sues Parole Officer Derek Vonckx, in his individual and official capacities, and
the State of Kentucky’s Office of Probation/Parole. He alleges that on May 9, 2014, Defendant
Vonckx visited him at the Fayette County Detention Center, where Plaintiff was then
incarcerated, and had Plaintiff sign a “reported instruction to show up to a halfway house in
Owensboro Ky. called Dismas Charities.” Plaintiff stated that he signed it but that Defendant
Vonckx did not give him a copy of what he signed. He states that he was released from custody
on May 12, 2014, with no transportation provided to him, despite his request for transportation.
According to the complaint, Plaintiff called the Probation/Parole Office in Lexington,
Kentucky, and asked to speak to Defendant Vonckx. The receptionist denied his request because
Defendant Vonckx was not the parole officer assigned to him in Daviess County (where
Owensboro is located). He states that the receptionist denied his request to be connected to the
Daviess County branch of probation/parole. Plaintiff further states that, because he had no

means of transportation he had to remain in Lexington and could not comply with the conditions
of his parole. He was rearrested on August 7, 2014, on a parole violation for absconding. He
states that on his return to the Fayette County Detention Center, Sargent Taylor informed him
that the detention center was unaware of the conditions of release and was not given notification
of transport.
Plaintiff alleges that his constitutional rights were violated when he was discriminated
against for being an indigent, uneducated, young African-American male. As relief, he requests
$10,000 in punitive damages, as well as release on parole.
II. ANALYSIS
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 action, if the
Court determines that it 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) and (2). 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 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. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Individual-capacity claim against Defendant Vonckx
The doctrine of absolute immunity protects judges from civil liability when performing
judicial functions. Stump v. Sparkman, 435 U.S. 349, 363-64 (1978). This immunity has been
extended to parole officers sued in their individual capacity when their duties are judicial in
nature. Loggins v. Franklin Cnty., Ohio, 218 F. App’x 466, 476 (6th Cir. 2007). Informing
Plaintiff of the terms of his parole is intimately associated with judicial proceedings. See Horton
v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) (holding that parole officers enjoy absolute
immunity from liability for actions taken in connection with their official duties as parole
officers).  Consequently, the § 1983 claim against Defendant Vonckx in his individual capacity
must be dismissed for seeking relief from a defendant immune from such relief.
Official-capacity claim against Defendant Vonckx and claim against Office of
Probation/Parole
When a plaintiff sues an employee of a state agency in his official capacity, the claims
brought against the employee are deemed to be claims against the Commonwealth of Kentucky
itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Here, the Court lacks subject-matter
jurisdiction over Plaintiff’s claims for punitive damages against the Office of Probation/Parole, a
state agency, and against Defendant Vonckx, a state official, in his official capacity by operation
of the Eleventh Amendment to the U.S. Constitution. The Eleventh Amendment provides: “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.” U.S. Const. amend. XI. Although the Eleventh
Amendment does not address the situation where a state’s own citizen initiates suit against it,
case law has interpreted the amendment in such a way as to foreclose that possibility. Barton v.
Summers, 293 F.3d 944, 948 (6th Cir. 2002) (citing Hans v. Louisiana, 134 U.S. 1 (1890)). The
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Sixth Circuit has opined that “[a] state is sovereign within the structure of the federal system, and
‘it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without
its consent.’” Id. (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)).
There are essentially three exceptions to the rule cited above: (1) when the state consents
to suit; (2) when Congress has abrogated a state’s sovereign immunity; and (3) when under the
fiction created by Ex Parte Young, 209 U.S. 123 (1908), a litigant seeks injunctive or prospective
relief from a state officer in order to prevent future constitutional violations. See Barton, 293
F.3d at 948. None of these exceptions exist in this case.
Because Plaintiff’s claims for punitive damages against the Office of Probation/Parole
and Defendant Vonckx in his official capacity are barred by the Eleventh Amendment, the Court
will dismiss them under Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”).
Request for release
The only injunctive relief that Plaintiff requests is release from confinement. When the
legality of a confinement is challenged so that the remedy would be a speedier release, the case
must be filed as a habeas corpus proceeding rather than under 42 U.S.C. § 1983, and Plaintiff
must comply with the requirement that state-court remedies are exhausted. Preiser v. Rodriguez,
411 U.S. 475, 499 (1973). Therefore, Plaintiff’s request for release from imprisonment is not
cognizable in this § 1983 action. In the event that Plaintiff wishes to file a petition for writ of
habeas corpus, the Clerk of Court is DIRECTED to send a 28 U.S.C. § 2254 packet to Plaintiff.

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III. CONCLUSION
For the foregoing reasons, the Court will, by separate Order, dismiss Plaintiff’s claims.
Date:

March 17, 2015

cc:

Plaintiff, pro se (w/ § 2254 packet)
Defendants
4414.009

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