Blair v. Byars et al
Filing
7
MEMORANDUM OPINION & ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge Thomas B. Russell on 9/9/2011. cc:counsel (KJA) Modified on 9/12/2011 to change document type (KJA).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
KATELAN BLAIR
PLAINTIFF
v.
CIVIL ACTION NO. 5:11-CV-117-R
KEVIN BYARS et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff, Katelan Blair, pro se, moves to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a)(1) in this case (DN 3). The Court concludes that Plaintiff cannot without
undue hardship pay the fees or costs in this action. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion (DN 3) is GRANTED.
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). For the reasons set forth below, the
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff initiated this action by filing a complaint against Defendants Kevin Byars and
his employees and William Hillyer and other “third parties.” She complains that Defendants
have violated state and federal laws, conspired against her rights under Section 241, deprived her
of her rights under color of law, and threatened her. She specifically states that she is entitled to
the full protection of the Equal Protection Clause of the Fourteenth Amendment.
II. ANALYSIS
This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v.
Wrigglesworth, 114 F.3d at 604-05. Upon review, this Court must dismiss a case at any time if
the Court 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 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 the plaintiff and accept all of the factual allegations as
true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A complaint, or portion
thereof, should be dismissed for failure to state a claim upon which relief may be granted “only
if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
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).
Plaintiff alleges that Defendants violated her constitutional rights. However, the
Constitution does not apply to the conduct of private persons; it applies to conduct by the
government. Conduct of private parties “lies beyond the Constitution’s scope in most instances,
. . . [though] governmental authority may dominate an activity to such an extent that its
participants must be deemed to act with the authority of the government and, as a result, be
subject to constitutional constraints.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620
2
(1991). A private citizen is not liable for an alleged constitutional violation unless: (1) “the
claimed constitutional deprivation resulted from the exercise of a right or privilege having its
source in state authority”; and (2) “the private party charged with the deprivation could be
described in all fairness as a state actor.” Id.
Nothing in Plaintiff’s complaint or attachments thereto shows that Defendants are state
actors, i.e., acted under color of state law. Consequently, Plaintiff’s constitutional claims against
Defendants fail to state a claim for which relief may be granted.
Plaintiff’s complaint also does not state a claim under 18 U.S.C. § 241. Section 241 provides
criminal penalties, not civil remedies, for, among other things, “deprivation of any rights,
privileges, or immunities secured or protected by the Constitution or laws of the United States,”
under color of a state law, statute, ordinance, regulation, or custom. “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). The Court does
not have the power to direct that criminal charges be filed. Peek v. Mitchell, 419 F.2d 575, 57778 (6th Cir. 1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972). Thus,
Plaintiff’s claims under the criminal code fail.
Nor can jurisdiction for Plaintiff’s complaint be premised on the diversity statute, 28
U.S.C. § 1332(a), as there is no diversity of citizenship between the parties. Under the diversityof-citizenship statute, “The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . .
citizens of different states . . . . ” 28 U.S.C. § 1332(a)(1). “[D]iversity jurisdiction does not exist
unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. &
3
Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Plaintiff, however, neither claims that the
action exceeds $75,000 nor demonstrates that she and all Defendants are citizens of a State other
than Kentucky. Plaintiff’s address and Defendants’ addresses are all in Kentucky.
Consequently, Plaintiff cannot bring any state-law claims by way of the federal diversity statute.
III. CONCLUSION
For the foregoing reasons, the Court will enter an Order consistent with this
Memorandum Opinion and Order.
Date:
September 9, 2011
cc:
Plaintiff, pro se
4413.009
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?