Gamble v. Commonwealth of Kentucky
Filing
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MEMORANDUM OPINION by Senior Judge Thomas B. Russell. The action will be dismissed by separate Order for failure to meet the pleading standard under Fed. R. Civ. 8(a). cc:Plaintiff, pro se (ERH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:14CV-P121-R
BENNIE L. GAMBLE, JR.
PLAINTIFF
v.
COMMONWEALTH OF KENTUCKY
DEFENDANT
MEMORANDUM OPINION
Plaintiff Bennie Gamble, a prisoner at the Northpoint Training Center, filed this pro se
action on his own paper naming the Commonwealth of Kentucky as the only Defendant. For the
reasons set forth herein, the Court will dismiss the action.
The caption of the initiating document states, “Motion to Vacate Pursuant to the U.S.
Const., Federal Civil Judicial Procedure and Rules, and the Emancipation Proclaimation.” The
filing states as follows:
Now comes Petitioner, Bennie L. Gamble, Jr., Personam, U.C.C.1-207, “Without
Prejudice”, Hereby Motions this Honorable Court to grant Petitioner; “Immediate
Release”. The Respondants are in “Substantial Error” and violation of the U.S.
Constitution, Kentucky Constitution, Federal Civil Judicial Procedures and Rules,
and the Emancipation Proclaimation . . .
Plaintiff further states, “As grounds for this Motion, pursuant to, and in accordance with 28 USC
§1331. Federal Question: The district courts SHALL have original jurisdiction of all civil
actions arising under the constitution, laws, or treaties of the United States.” He also states,
Ҥ1343. Civil Rights and elective Franchise: (a) The district courts SHALL have original
jurisdiction of any civil action authorized by law to be commenced by any person . . . .” Plaintiff
also states, “CR 302. In civil actions and proceedings, the effect of a presumption respecting a
fact which is an element of a claim or defense as to which state law supplies the rule of decision
is determined in accordance with State Law.” He also quotes 28 U.S.C. § 1443(1). Finally,
Plaintiff states that Defendant Commonwealth of Kentucky “[]is in want of Lack of Jurisdiction
over the subject-matter, person of the Prisoner, and To ENTER THE JUDGMENT IT
ENTERED. WHEREFORE, Petitioner Motions and ask ‘IMMEDIATE RELEASE’, and
RESTITUTION.”
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).
In the instant case, Plaintiff’s complaint fails to meet this standard. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002) (indicating that the short and plain statement of claim
must “‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which
it rests’”) (citation omitted). The complaint sets forth no facts upon which Plaintiff bases his
claims. While he cites to federal statutes and rules, he provides no factual allegations which
establish a cause of action. The Court is not able to determine what Plaintiff’s claim is or what
grounds could support a claim. The action is therefore subject to dismissal under Fed. R. Civ.
8(a) for failure to meet the pleading standard.
Moreover, to the extent that Plaintiff seeks immediate release from custody, the sole
remedy for seeking release is a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973). The Court notes that one week after filing the instant action, Plaintiff filed
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a petition for writ of habeas corpus under 28 U.S.C. § 2254 in this Court. See Gamble v. Bottom,
Civil Action No. 5:14CV-29-R.1
Consequently, by separate Order, the instant action will be dismissed.
Date:
October 14, 2014
cc:
Plaintiff Gamble, pro se
4413.010
1
That petition will be transferred to the Sixth Circuit Court of Appeals as a second or successive petition.
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