Bardwell v. KY New Era Newspaper et al

Filing 9

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell; Upon initial screening, IT IS ORDERED that Plaintiff's claims under § 1983 based on alleged violations of the First Amendment, claims under § 1985, and claims under the Ci vil Rights Act of 1964 are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. The Court will enter a separate Order Directing Service and Scheduling Order governing the claims that have been allowed to proceed. cc: Plaintiff, pro se; Defendants; Christian Co. Attorney (ERH)

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. On
April 20, 2016, the Court conducted initial screening of the action pursuant to 28 U.S.C.
§ 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007) (DN 6). Upon initial review, the Court dismissed
Plaintiff’s claims against the Hopkinsville Police Department (HPD) and ordered Plaintiff to
provide the status of his criminal charges before conducting initial screening of the other claims.
Plaintiff has now provided information concerning the status of his criminal charges. Therefore,
the Court will conduct initial screening of the remaining claims.
Upon review, the Court will dismiss some of Plaintiff’s claims and allow others to
proceed for further development.
I.
In the original complaint, Plaintiff sues the Kentucky New Era newspaper; the HPD; and
HPD Officers B. Sierra and A. Vance. In his statement of the claim, Plaintiff states that the
Kentucky New Era newspaper printed a “slanderous untrue statement” about him “giving the
people i know who read it a false thinking of me now by Believing what was written.” He states
that the HPD violated his civil rights “by not allowing me access to the County Attorney’s office
once finding out Thomas Lyle (who had just hit me with a 2 x 4) was a white man and Police

Informant was involved.” He further states, “Officer B. Sierra and Officer Vance as told to me
by the Christian County Public Advocacy Office, who are representing me on false charges of 2
misdemeanor’s (Terroristic Threatening) and (Robbery). The 2 false warrants Thomas Lyle was
allowed to file at the urgence of Sierra and Vance police officer’s.” He states that he “had
already filed charges on Thomas Lyle first at the County Attorney’s Office . . . .” Attached to
the complaint are two letters from the Christian County Attorney’s Office, one addressed to
Plaintiff and one addressed to Thomas Lyle. The letters essentially state that both men had
complained to the County Attorney’s Office about the other and that they should make every
effort to have no contact with each other.
In the amended complaint, Plaintiff sues HPD Officers Vance and Sierra; the Kentucky
New Era newspaper; and Chuck Henderson, whom Plaintiff identifies as the CEO of the
Kentucky New Era newspaper. Where the form asks Plaintiff to list specific federal statutes or
provisions of the United States Constitution at issue, Plaintiff states, “Amendment 1 Free Speech
civil rights act of 1964 Race national origin 42 U.S. Code § 1985 conspiracy to interfere with
civil rights [] depriving person of rights and privileges.” Elsewhere in the form, Plaintiff states,
“I was held in Jail due to a lie by Thomas Lyle a police informant who said i robbed him and
threatened him falsely to O. Sierra and O. Vance HPD.” As his statement of the claim in the
amended complaint, Plaintiff states, “Chuck Henderson – Libel (Published) (False) (injurious) by
his newspaper Ky New Era. 1st Amendment violation O. Vance HPD Officer Sierra – 1964 Civil
Rights violation false imprisonment False Arrest based on a lie by Police Informant Thomas
Lyle.” In the relief section of the complaint form, Plaintiff states, “Punitive – reputation
damaged as far as employment O. Vance and O. Sierra HPD with Chuck Henderson Ky New Era

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newspaper. $5,000,000 for Libel/Slander and false arrest with false imprisonment and the
$1,500 dollars for Lawyer Rick Boling at my expense.”
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). 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 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the
duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979). 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)). “But the
district court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488
(quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)).

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III.
The Court construes the complaint and amended complaint as alleging claims under 42
U.S.C. §§ 1983 and 1985 for false arrest, false imprisonment, and violation of the First
Amendment against HPD Officers Vance and Sierra; alleging claims under the Civil Rights Act
of 1964 against HPD Officers Vance and Sierra; and alleging claims of libel and slander against
the Kentucky New Era newspaper, Henderson, and HPD Officers Vance and Sierra.1
§ 1983 claims
In the April 20, 2016, Memorandum and Order, the Court determined that, with regard to
the false arrest and false imprisonment claims against Officers Vance and Sierra, if the charges
against Plaintiff were still pending, it may be necessary for the Court to stay the instant action
until completion of the criminal matter under Wallace v. Kato, 549 U.S. 384, 393 (2007).
Alternatively, the Court found that the claims may be barred by the doctrine announced in Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Therefore, the Court ordered Plaintiff to provide
information concerning the status of the criminal charges. Plaintiff provided information
indicating that the charges against him were dismissed. Because the charges are no longer
pending and appear to have been dismissed, it is not necessary to stay the false arrest and false
imprisonment claims, and the claims do not appear to fall under the Heck v. Humphrey doctrine.
Accordingly, the Court will allow Plaintiff’s claims under § 1983 of false arrest and false
imprisonment to proceed against Officers Vance and Sierra in their individual capacities.
With regard to Plaintiff’s First Amendment allegations, the First Amendment provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
As stated above, the Court dismissed Plaintiff’s claims against the Hopkinsville Police
Department (DN 6).
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peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const.
amend. I. Plaintiff fails to explain how the First Amendment applies to his claims. Based on the
facts as alleged by Plaintiff, the Court does not find that Plaintiff has a cognizable First
Amendment claim against Defendants. Therefore, his § 1983 claims based on alleged violation
of the First Amendment will be dismissed.
§ 1985 claims
Plaintiff also references § 1985. He does not state on which section of § 1985 he is
relying. However, as none of Plaintiff’s allegations indicate that § 1985(1) or (2)2 would apply,
the Court presumes that he is alleging violations under § 1985(3). The Sixth Circuit has held that
a viable § 1985(3) claim must contain:
(1) [A] conspiracy involving two or more persons (2) for the purpose of
depriving, directly or indirectly, a person or class of persons of the equal
protection of the laws and (3) an act in furtherance of the conspiracy (4) which
causes injury to a person or property, or a deprivation of any right or privilege of
a citizen of the United States.
Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994) (citing Hilliard v.
Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994)). To state a claim for conspiracy under § 1985,
there must be specific factual allegations showing the existence of the conspiracy, as well as
allegations that the Defendants acted with the specific intent to deprive Plaintiff of equal
protection or equal privileges and immunities; conclusory allegations unsupported by material
facts are insufficient to state a claim. Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 368 (6th
Cir. 2012) (noting that “‘conspiracy claims must be pled with some degree of specificity and . . .
vague and conclusory allegations unsupported by material facts will not be sufficient to state
such a claim’”) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); Brooks v.

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Section 1985(1) applies to preventing an officer from performing duties, and § 1985(2) pertains
to obstructing justice and intimidating a party, witness, or juror in a court proceeding.
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Am. Broad. Cos., Inc., 932 F.2d 495, 499 (6th Cir. 1991) (finding that § 1985 claim failed
because “the allegations were too vague and conclusory”); Azar v. Conley, 456 F.2d 1382, 1384
(6th Cir. 1972) (“In order to state a claim for relief under 42 U.S.C. § 1985, there must be
specific allegations showing the existence of a conspiracy. General and conclusory allegations
of conspiracy are not enough.”).
In the present case, Plaintiff has not made specific factual allegations sufficient to state a
§ 1985 conspiracy claim against Defendants. Without such factual allegations, his § 1985(3)
conspiracy claims fail and will be dismissed for failure to state a claim upon which relief may be
granted.
Claims under the Civil Rights Act of 1964
With regard to Plaintiff’s claim alleging a violation of the Civil Rights Act of 1964
(CRA), Plaintiff does not specify the Title of the CRA under which he brings his claims.
Broadly speaking, the CRA guarantees equal voting rights by removing registration requirements
and procedures biased against minorities, 42 U.S.C. § 1971(e); prohibits segregation or
discrimination in places of public accommodation involved in interstate commerce, 42 U.S.C.
§ 2000a; deals with the desegregation of public schools, 42 U.S.C. § 2000c et seq.; mandates
nondiscrimination in the distribution of funds under federally assisted programs, 42 U.S.C.
§ 2000d; and bans discrimination by trade unions, schools, or employers involved in interstate
commerce or doing business with the federal government, 42 U.S.C. § 2000e et seq. Plaintiff
has not alleged, and the Court cannot discern, any provision of the CRA which applies to his
claims. Therefore, Plaintiff’s claims under the CRA will be dismissed for failure to state a claim
upon which relief may be granted.

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State-law claims
Finally, the Court will allow Plaintiff’s state-law libel and slander claims to proceed
against the Kentucky New Era newspaper, Henderson, and HPD Officers Vance and Sierra in
their individual capacities. The Court will also allow state-law claims of false arrest and false
imprisonment to proceed against HPD Officers Vance and Sierra in their individual capacities, as
well.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s claims under § 1983 based on alleged violations of the
First Amendment, claims under § 1985, and claims under the Civil Rights Act of 1964 are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted.
The Court will enter a separate Order Directing Service and Scheduling Order governing
the claims that have been allowed to proceed.
Date:

July 26, 2016

cc:

Plaintiff, pro se
Defendants
Christian County Attorney
4413.010

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