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Benton v. State of Ky-Jefferson Cnty.

United States District Court, W.D. Kentucky, Louisville

August 12, 2014

DAVID L. BENTON, Plaintiff,
v.
STATE OF KY-JEFFERSON CNTY. ATTORNEY'S OFFICE, Defendant.

MEMORANDUM OPINION

CHARLES R. SIMPSON, III, Senior District Judge.

Pro se Plaintiff, David L. Benton, proceeding in forma pauperis filed this action on a general civil complaint form (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed.

I. SUMMARY OF CLAIMS

As grounds for filing this case in federal court, Plaintiff states as follows, "Disreguard to Due Process-Violations of/to: USC, 42, 1983 (Deprivation of Rights)·USC, 42-1985· 18, USC, 241 · 18, USC, 1038 ·42, USC, 1981 · 18, USC, 402 · Ky Bill of Rights, Sec. (1) · U.S. Bill of Rights, Sec's:1, 3·Constitutional Rights, Sec's: 7, 11, 14, 18*Ky STATUES: 522.020, -525.080-525.70-525.055-506.040-522.040."

In the complaint, Plaintiff alleges:

The Attorney's Office of the State's Represenative did not follow the Lawful Guidelines of City, State & Country, Contridicting Due process and Rules of Conduct, As follows: KRS Sections - 522.050; 62.030; 522.020; 367.170. The Attorney's Office Represented by or directed by Penny Houngel - This situation was in debate at the Hall of Justice (new Jail complex) Division #10, Family Court - The case was Activated In 2007 and Resolved in 2014 anD is the Direct cause of yet another Legal issue in traffict court.

The Court considers this action as being brought against the Jefferson County Attorney's Office.[1] Plaintiff seeks monetary relief, as well as, "[t]he fastest Resolve /w/ An apology from the DefenDAnt."

II. STANDARD OF REVIEW

Upon review under 28 U.S.C. § 1915(e)(2), a district court must dismiss a case at any time if it determines that the 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. 28 U.S.C. § 1915(e)(2)(B). 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 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

A. Federal-law claims

18 U.S.C. § 241

Plaintiff alleges a claim under 18 U.S.C. § 241. This is a criminal statute which provides in relevant part as follows:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same... They shall be fined under this title or imprisoned not more than ten years....

There are no facts in Plaintiff's complaint to support this charge. Regardless, Plaintiff, as a private citizen, may not enforce the federal criminal code. See Abner v. General Motors, 103 F.App'x 563, 566 (6th Cir. 2004) (finding that the plaintiff could not initiate a federal criminal prosecution); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam) ("Only the United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241-242."). Nor does this statute provide any private right of action for a violation. See Burnette v. Pettway, No. 97-5822, 1998 WL 476198, at *1 (6th Cir. Aug. 3, 1998) (noting "that the district court properly found that § 241 is a criminal statute which does not provide a basis for ...


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