Forte v. Pryor et al

Filing 10

MEMORANDUM OPINION by Senior Judge Thomas B. Russell. The Court will dismiss this action by separate Order. cc: Plaintiff, pro se; Defendants (EM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
RONNIE JOE FORTE

PLAINTIFF

v.

CIVIL ACTION NO. 5:15CV-P122-TBR

LYNN PRYOR et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff, Ronnie Joe Forte, a prisoner proceeding in forma pauperis, has filed a pro se
complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for initial
review of the complaint 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 that follow, this action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff identifies the following three Defendants: (1) Lynn Pryor, the Commonwealth
Attorney; (2) Kathy Adams, an assistant prosecutor; and (3) Michael Cutoff, also an assistant
prosecutor. Plaintiff sues Defendants only in their official capacities. As relief, Plaintiff seeks
monetary and punitive damages.
In his complaint, Plaintiff states as follows:
Fourth Amendment right as well as my Fifth and Sixth an Fourteen Amendment’s
has all been violated. With malicious prosecution on my Fourth Amendment
Right-“Without-probable cause to prosecute Ronnie J. Forte in Case no 10-CR00515 and case no. 10-CR-00299 without probable cause to conviction. Both
case was dismissed. As they were actual, unlawful, forcible restraints of his
person. Also with false imprisonment. Also false, inaccurate and also perjured
information was disclosure the affidavit including false statements that was
material facts . . . Evidence was recklessly omitted in as evidence. The warrant
contains deliberate falsity and reckless disregard for the truth. Four to five year’s
with violation on my right. For four year’s Lynn Pryor has violated my Fourth
Amendment right, with these two case’s with malicious prosecution in a unlawful
way. Lynn Pryor drop the warrant in case no. 10-CR-00299 case back in 2010

now in a “supervisory power” she Lynn Pryor dismiss the warrant now to gain
influence in may new case 10-CR-00515 Lynn Pryor engages in outrageous
misconduct in a pervasive misconduct to build a case against Ronnie J. Forte, pro,
se which is a violation of his constitution right. Now in 2014 in case No. 10-CR00515 this case was “Dismissed without probable cause. And in 2015 in case no.
10-CR-00299 was also “dismissed without probable cause. These two case’s was
“vindictive-prosecutioni malicious prosecution and without probable cause,”
Misuse and Abuse
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 v. Wrigglesworth, 114 F.3d at 608.
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
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] 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)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
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Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] 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 the Court “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. ANALYSIS
Under the Eleventh Amendment to the U.S. Constitution,1 a state and its agencies may
not be sued in federal court, regardless of the relief sought, unless the state has waived its
immunity or Congress has overridden it. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
119-20 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978). The Commonwealth of Kentucky
has not waived its immunity, see Adams v. Morris, 90 F. App’x 856, 857 (6th Cir. 2004), and in
enacting § 1983, Congress did not intend to override the traditional sovereign immunity of the
states. Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir. 1991) (citing Quern v. Jordan,
440 U.S. 332, 341 (1979)); see Ferritto v. Ohio Dep’t of Highway Safety, No. 90-3475,
1991 WL 37824, at *2 (6th Cir. Mar. 19, 1991) (“The Eleventh Amendment prohibits actions
against states and state agencies under section 1983 and section 1985.”).
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“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. “While the Amendment by its terms
does not bar suits against a State by its own citizens, [the Supreme Court] has consistently held that an
unconsenting State is immune from suits brought in federal courts by her own citizens as well as by
citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).

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The Eleventh Amendment similarly bars the damages claims against state officials sued
in their official capacity. See 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.”); McCrary v. Ohio Dep’t of Human Servs., No. 99-3597, 2000 WL 1140750, at *3
(6th Cir. Aug. 8, 2000) (finding § 1983 and § 1985 claims against state agency and its employees
in their official capacities for damages barred by Eleventh Amendment immunity). Thus, the
claims against Defendants, who are employees of the Commonwealth of Kentucky sued in their
official capacities for monetary damages, are barred by Eleventh Amendment immunity.
See 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.”); McDonald v. Prior, No. 5:15CV-P6-TBR,
2015 WL 4041476, at *4 (W.D. Ky. July 1, 2015) (finding that the official-capacity claims for
damages against prosecutors Prior and Cuttoff were barred by Eleventh Amendment immunity).
Further, Defendants sued in their official capacities for monetary damages are not
considered “persons” subject to suit under § 1983. See 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);
Thomas v. Noder-Love, No. 13-2495, 2015 WL 4385284, at *5 (6th Cir. July 17, 2015) (“It is
also well-settled that [Eleventh Amendment] . . . immunity applies to claims under § 1983,
meaning that states and state officials sued in their official capacity are not considered ‘persons’
under § 1983 and, therefore, cannot be sued for money damages without the state’s consent.”).

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IV. CONCLUSION
For the foregoing reasons, this complaint will be dismissed pursuant to 28 U.S.C.
§ 1915A(b)(2) by separate Order.
Date:

August 24, 2015

cc:

Plaintiff, pro se
Defendants
4413.003

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