Gamble v. Paducah Police Department et al
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 11/14/2012; an appropriate order shall issuecc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BENNIE L. GAMBLE, JR.
CIVIL ACTION NO. 5:12CV-P121-R
PADUCAH POLICE DEPT. et al.
Plaintiff Bennie L. Gamble, Jr. filed a pro se complaint pursuant to 42 U.S.C. § 1983.
This matter is before the Court on initial review of the complaint pursuant to 28 U.S.C. § 1915A.
See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the
complaint will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff reports that he is a pretrial detainee at the Northpoint Training Center. He
brings suit against the Paducah Police Dept.; Paducah Police Dept. Officers/Det. Gary Reese and
Danny Carroll; McCracken Circuit Court Judge Jeffery R. Hines; McCracken District Court
Judge Craig Clymer; McCracken Circuit Court “Prosecutor/Judge” Timothy Kaltenbach; and the
Dept. of Public Advocacy. He sues Defendants in their individual and official capacities.
In the complaint, Plaintiff sets out his statement of claim in four numbered paragraphs.
First, he states that in September 1997, he was arrested in “Tx City, Tx” and taken to the
McCracken County Jail by Defendants Reese and Carroll. He reports being accused of murder
and 1st-degree robbery, going to trial, and being convicted in 1999. Second, Plaintiff reports
filing a direct appeal to the Kentucky Supreme Court, where the conviction was reversed and
remanded for a new trial, “violating my right to Equal Protection under the Equal Protection
Clause, pursuant to the U.S. Constitution, Am-Jur., and KY Constitution, as well as my civil
rights.” Third, Plaintiff also alleges that his “common Law and Private Rights pursuant to
Article IV and Article VI are still being violated and aggregiously and grossly neglected in
accordance and pursuant to 28 USC Title 18. Fourth, and finally, Plaintiff reports filing a federal
habeas petition pursuant to 28 U.S.C. § 2254, which he states is pending on appeal in the “U.S.
Court of Appeals for the District of Columbia Circuit, case no. 12-5230. Originating case no. in
the U.S. District Court, Western District of Kentucky . . . 5:12-CV-00101-TBR,1 transferred
from case no. 7:12-cv-0076-ART.”
As relief, Plaintiff seeks $2 Billion in both monetary and punitive damages, immediate
release, and “prosecution to the full extent of the law.”
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, 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 § 1915A(b)(1), (2); McGore, 114 F.3d at 604.
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 trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
Review of this Court’s records reveals that by Order entered July 31, 2012, Action No.
5:12CV-101-R was administratively closed and the documents therein were transferred to Action
No. 5:12CV-P85-R, an earlier filed, identical action. Thereafter, by Memorandum Opinion and
Order entered September 26, 2012, Action No. 5:12CV-P85-R was dismissed for failure to
prosecute and to comply with a prior Order of this Court.
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a
claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “[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, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “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.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555, 557).
A. Individual-Capacity Claims Against Defendants Reese and Carroll
The statute of limitations for § 1983 actions is governed by the limitations period for
personal injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S.
384, 387 (2007). In Kentucky, § 1983 actions are limited by the one-year statute of limitations
found in Ky. Rev. Stat. Ann. § 413.140(1). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182
(6th Cir. 1990). Although state law establishes the statute of limitations for § 1983 actions,
federal law controls on the issue of when the statute of limitations begins to run. Sevier v.
Turner, 742 F.2d 262, 272 (6th Cir. 1984). Federal law establishes that the § 1983 statute of
limitations accrues when the plaintiff knew or should have known of the injury that forms the
basis of the claim alleged in the complaint. Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001).
When the face of the complaint shows that an action is time barred, the case may be dismissed
summarily upon screening. Jones v. Bock, 549 U.S. 199, 215 (2007).
Plaintiff alleges that Defendants Reese and Carroll took him from Texas to the
McCracken County Jail in September 1997. The statute of limitations for Plaintiff’s § 1983
claims against those Defendants, therefore, expired one year later in September 1998. Plaintiff
did not file the current action until August 9, 2012,2 well over a decade after the statute of
limitations expired. As such, any claims Plaintiff attempts to bring against Defendants Reese
and Carroll are time barred.
B. Defendants Paducah Police Dept. and Official-Capacity Claims Against
Defendants Reese and Carroll
“Official-capacity suits . . . ‘generally represent  another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 166
(1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Plaintiff’s official capacity claims against Defendants Reese and Carroll, therefore, are actually
against the City of Paducah. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008).
Similarly, the claims against the Paducah Police Dept. must also be brought against the City of
Paducah as the real party in interest. Cf. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)
Under the prison mailbox rule, “a pro se prisoner’s complaint is deemed filed when it is
handed over to prison officials for mailing to the court.” Brand v. Motley, 526 F.3d 921, 925
(6th Cir. 2008). “Cases expand the understanding of this handing-over rule with an assumption
that, absent contrary evidence, a prisoner does so on the date he or she signed the complaint.”
(since the county police department is not an entity which may be sued, the county is the proper
party); Smallwood v. Jefferson Cnty. Gov’t, 743 F. Supp. 502, 503 (W.D. Ky. 1990) (suit against
Fiscal Court and Judge Executive is a suit against the county).
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order.
“[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v.
City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). “[T]he touchstone of ‘official policy’ is
designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original). To demonstrate
municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the
policy to the municipality, and (3) show that his particular injury was incurred due to execution
of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis
Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
In the instant case, Plaintiff has not alleged any city policy or custom that caused his
alleged harm. Nothing in the complaint demonstrates any actions that occurred as a result of a
policy or custom implemented or endorsed by the City of Paducah. Accordingly, the complaint
fails to establish a basis of liability against the municipality and fails to state a cognizable § 1983
claim against the Paducah Police Dept. and Defendants Reese and Carroll in their official
C. Defendants Hines, Clymer, and Kaltenbach
1. Official-capacity claims
The Court will dismiss these claims on two bases.
First, Defendants Hines, Clymer, and Kaltenbach, as state officials sued in their official
capacities for damages, are absolutely immune from liability under the Eleventh Amendment to
the United States Constitution. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (“This [Eleventh
Amendment] bar remains in effect when State officials are sued for damages in their official
capacity.”); Boone v. Kentucky, 72 F. App’x 306, 307 (6th Cir. 2003) (“Boone’s request for
monetary relief against the prosecutors in their official capacities is deemed to be a suit against
the state and also barred by the Eleventh Amendment.”); Bennett v. Thorburn, No. 86-1307,
1988 WL 27524, at *1 (6th Cir. Mar. 31, 1988) (concluding that an official capacity suit against
a judge who presided over state court litigation was barred by the Eleventh Amendment); CH, ex
rel. Watkins v. Dvorak, No. 3:08cv0379-AS-CAN, 2009 WL 500532, at *3 (N.D. Ind. Feb. 27,
2009) (finding Indiana prosecutors entitled to Eleventh Amendment immunity).
Second, none of the Defendants sued in their official capacities for damages are
“persons” subject to suit within the meaning of § 1983. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989) (concluding that a state, its agencies, and its officials sued in their official
capacities for monetary damages are not considered persons for the purpose of a § 1983 claim);
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (same).
Consequently, the § 1983 official-capacity claims for damages against Defendants Hines,
Clymer, and Kaltenbach in their official capacities for damages will be dismissed for failure to
state a claim upon which relief may be granted and for seeking monetary relief from Defendants
immune from such relief.
2. Individual-capacity claims
While the Court is aware of its duty to construe pro se complaints liberally, Plaintiff is
not absolved of his duty to comply with the Federal Rules of Civil Procedure by providing
Defendants with “fair notice of the basis of [his] claims.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 514 (2002). To state a claim for relief, Plaintiff must show how each Defendant is
accountable because the Defendant was personally involved in the acts about which Plaintiff
complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). “It is not enough for a complaint
. . . to contain mere conclusory allegations of unconstitutional conduct by persons acting under
color of state law. Some factual basis for such claims must be set forth in the pleadings.”
Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986) (dismissing a complaint brought
under § 1983). A complaint must contain “‘either direct or inferential allegations respecting all
the material elements to sustain a recovery under some viable legal theory.’” Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). This means that Plaintiff must “allege ‘with
particularity’ all material facts to be relied upon when asserting that a governmental official has
violated a constitutional right.” Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834
(6th Cir. 2002). The Court is not required to accept non-specific factual allegations and
inferences or unwarranted legal conclusions. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511
(6th Cir. 2001).
Plaintiff alleges no facts involving Defendants Hines, Clymer, and Kaltenbach; he merely
identifies them as Defendants in the caption of the complaint and in the parties section of the
complaint. He, therefore, fails to give these Defendants fair notice of the claims against them
and the grounds upon which they rest. Consequently, Plaintiff has failed to state a claim upon
which relief may be granted against Defendants Hines, Clymer, and Kaltenbach.
D. Defendant Dept. of Public Advocacy
Plaintiff additionally alleges no facts involving the Dept. of Public Advocacy and,
therefore, does not give this Defendant fair notice of his claims against it and the grounds upon
which they rest. Further, the Dept. of Public Advocacy is an independent agency of state
government, see Ky. Rev. Stat. Ann. § 31.010, and it is firmly established that a defense
attorney, regardless of whether he is a public defender or private attorney, is not a state actor for
purposes of § 1983. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does
not act under color of state law when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.”). Accordingly, the claims against the Dept. of Public
Advocacy must be dismissed for failure to state a claim upon which relief may be granted.
E. Injunctive relief
Plaintiff seeks immediate release and “prosecution to the full extent of the law.”
“[W]hen a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release
or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Plaintiff, therefore, cannot obtain an immediate
release in a § 1983 action.
To the extent Plaintiff wants Defendants prosecuted, this request also fails as “[a]uthority
to initiate a criminal complaint rests exclusively with state and federal prosecutors.” Sahagian v.
Dickey, 646 F. Supp. 1502, 1506 (W.D. Wis. 1986); see also United States v. Nixon, 418 U.S.
683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.”); Williams v. Luttrell, 99 F. App’x 705, 707 (6th Cir. 2004)
(“[A]s a private citizen, Williams has no authority to initiate a federal criminal prosecution of the
defendants for their alleged unlawful acts.”).
For all the reasons set forth above, the Court will enter a separate Order dismissing this
Date: November 14, 2012
Plaintiff, pro se
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?