Bardwell v. KY New Era Newspaper et al

Filing 23

MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 1/9/2017; re 19 Amended Complaint filed by Mark Bardwell ; Clerk is directed to re-docketed as Second Amended Complaint; the second amended complaint is DISMISSED. See order for specifics.cc:counsel, plaintiff pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
MARK BARDWELL

PLAINTIFF

v.

CIVIL ACTION NO. 5:15CV-242-TBR

KY NEW ERA NEWSPAPER et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Mark Bardwell filed this pro se action proceeding in forma pauperis. This
matter is now before the Court on a second amended complaint filed by Plaintiff (DN 19). The
Court first observes that the filing was docketed as an amended complaint. However, since
Plaintiff filed a previous amended complaint (DN 5), the Clerk of Court is DIRECTED to redocket the instant filing as a second amended complaint.
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled
on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Upon review of the second amended
complaint, the Court will dismiss the purported claims.
I.
In the original complaint, Plaintiff sued the Kentucky New Era newspaper; the
Hopkinsville Police Department (HPD); and HPD Officers Sierra and Vance. In the amended
complaint, Plaintiff sued HPD Officers Sierra and Vance; the Kentucky New Era newspaper; and
Chuck Henderson, whom he identified as the CEO of the Kentucky New Era newspaper. Upon
initial screening of the complaint and amended complaint pursuant to 28 U.S.C. § 1915(e), the
Court dismissed some of the claims and allowed the following claims to proceed: Plaintiff’s
claims under § 1983 of false arrest and false imprisonment against Officers Sierra and Vance in

their individual capacities; Plaintiff’s state-law libel and slander claims against the Kentucky New
Era newspaper, Chuck Henderson, and Officers Sierra and Vance in their individual capacities;
and state-law claims of false arrest and false imprisonment against Officers Sierra and Vance in
their individual capacities.
In the second amended complaint, Plaintiff names as Defendants the following: Judge
Cotthoff; Maureen Leamy and Lindsey Adams, whom Plaintiff identifies as Assistant County
Attorneys; Clayton Sumner, whom Plaintiff identifies as the HPD Police Chief; and Hopkinsville
Mayor Carter Hendricks. Where the complaint form asks for the basis for jurisdiction, Plaintiff
states, “U.S. Constitution Amendment 8, Amendment 4, Amendment 6, Amendment 14 Miranda
rights violation.” In the statement-of-the-claim portion of the complaint form, Plaintiff states, “A
violation of my amendment rights as a citizen legally born in the United States of America. Civil
rights as a whole.” In the relief section of the form, Plaintiff states, “5,000,000 damages by the 7
defendants.”
II.
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, the Court must dismiss
a case at any time if it determines that an 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. See 28 U.S.C. § 1915(e)(2)(B). Although this Court recognizes that pro se
pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.
1991), “[o]ur duty to be ‘less stringent’ with pro se complaints does not require us to conjure up
unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And

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this Court is not required to create a claim for 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).
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint “shall
contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). While the Court has a 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 for 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 he
complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). The pleading standard set forth in
Rule 8 “‘does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted)).
In the second amended complaint, Plaintiff makes only broad and conclusory allegations
of violations of his constitutional rights which are not entitled to the assumption of truth. See
Abner v. Focus: Hope, 93 F. App’x 792, 793 (6th Cir. 2004) (stating that the court is not
“required to accept non-specific factual allegations and inferences or unwarranted legal
conclusions”). These conclusions are not supported by factual allegations that would “plausibly
give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. The second amended complaint

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does not 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)). Therefore, the second amended complaint fails to meet the pleading
standards of Rule 8(a) and must be dismissed for failure to state a claim upon which relief may
be granted.
III.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s second amended complaint is DISMISSED for failure
to meet the pleading standards of Rule 8(a) and for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).
Date:

January 9, 2017

cc:

Plaintiff, pro se
Counsel of record
Christian County Attorney
4413.010

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