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Lowe v. Commonwealth of Kentucky Attorney General

United States District Court, E.D. Kentucky, Northern Division, Covington

April 2, 2015

KURT J. LOWE, Plaintiff,
v.
COMMONWEALTH OF KENTUCKY ATTORNEY GENERAL, et al., Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, Chief District Judge.

Kurt J. Lowe is a pre-trial detainee confined at the Boone County Jail in Burlington, Kentucky.[1] Proceeding without an attorney, Lowe filed a civil rights action pursuant to 42 U.S.C. § 1983. [R. 1] The Court has granted Lowe's motion to proceed in forma pauperis by prior order. [R. 8]

This matter is before the Court to address a number of motions filed by the parties, and to conduct a preliminary review of Lowe's complaint because he has been granted permission to proceed in forma pauperis and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. Upon its own motion, a district court must dismiss any claim that 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Lowe's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

I

In his complaint, Lowe names as defendants the Commonwealth of Kentucky Attorney General's Office; Kentucky Attorney General Jack Conway; the Kentucky State Police ("KSP"); KSP Capt. Greg Crockett; United States Marshal "Agent Romey"; United States Marshal "Agent Chris"; Kentucky State Senator John Schickel; Larry Brown of the Florence City Council; and John Schaaf, legal counsel for the Kentucky Legislative Ethics Commission ("KLEC").[2] Each of the individual defendants is named in his or her individual and official capacity. [R. 1, pp. 1-2]

Lowe alleges that for more than a decade, the Boone County Sheriff's Department "has been used to brutalize and retaliate against citizens who exercise protected rights, " and that state judges in Boone and Kenton counties "have been engaged in a court case fixing scandal, to cover up the brutal tactics..." Id. at p. 4. This allegation is largely similar, if not identical, to the allegations made by Lowe in another case he filed in this Court, Lowe v. Boone Co. Sheriff's Dept., No. 2:14-92-KKC (E.D. Ky. 2014) (" Lowe I "). Generally speaking, Lowe expands upon the allegations in Lowe I by contending that the Kentucky Attorney General and the Kentucky State Police "knowingly allowed [the "court case fixing scandal"] to go on, and even assisted in the covering it up." Id.

On September 16, 2013, Lowe was charged with threatening Kentucky state senator Schickel during a conversation with an investigator for KLEC. [R.44, p. 4] However, Lowe alleges that it was Larry Brown who "committed the crimes of terroristic threatening, and solicited the murder of Kentucky Senator John Schickel." Lowe states that he made a recording of Brown doing so, and sent it to the Kentucky State Police, but alleges that KSP later concealed that recording, which would have exonerated him of the terroristic threatening charges against him. [R. 1, pp. 5-6] Lowe also alleges that the Kentucky Attorney General's Office and Conway, Larry Brown, Senator Schickel, John Schaaf, Boone County Sheriff Michael Helmig, Boone County Attorney Bob Neace, as well as federal marshals "Chris" and "Romey" conspired to have Lowe arrested and prosecuted for terroristic threatening directed at Senator Schickel because he had exercised protected rights. Lowe asserts that the defendants illegally searched and seized his property, as well as conspired to fabricate certain evidence and conceal other evidence, all in furtherance of the prosecution against him. Id. at pp. 5-6.

Lowe contends that these actions violated his constitutional rights generally, and specifically his rights to be free from unwarranted searches, seizures, and arrest; excessive bail and cruel and unusual punishment; as well as for selective law enforcement, malicious prosecution, and prosecutorial misconduct. Lowe also asserts pendent state law claims for defamation, "malice, " "reckless & outrageous conduct, " intentional infliction of emotional distress and mental anguish, retaliation, intimidation, coercion, undue influence, duress, negligence, failure to train, failure to supervise, excessive force and criminal assault. Finally, Lowe asserts a separate claim under the civil provisions of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1964 et seq. ("RICO"). [R. 1, pp. 6-7]

II

As an initial matter, the Court will dismiss Lowe's civil RICO claim because Lowe claims only injury to his person, not to his property or business, and fails to allege either a pattern of racketeering activity or that any injury flowed from racketeering activity. Cf. Santana v. Cook Co. Bd. of Review, 700 F.Supp.2d 1023, 1034-35 (N.D. Ill. 2010), aff'd, 679 F.3d 613, 618 (7th Cir. 2012); Halpin v. Christ, 405 F.Appx. 403, 405-06 (11th Cir. 2010); Carpenter v. Kloptoski, No. 1:08-CV-2233, 2010 WL 891825, at *10 (M.D. Pa. March 10, 2010) ("Personal injuries, loss of earnings, and other indirect injuries do not confer standing under RICO."); Pagan v. Westchester Co., No. 12Civ. 7669(PAE)(JCF), 2014 WL 982876, at *17-20 (S.D.N.Y. March 12, 2014).

A

Second, the Kentucky Attorney General's Office and Jack Conway, in both his official and individual capacity, have moved to dismiss the claims against them. [R. 30] The Attorney General's Office and Conway in his official capacity contend that they are immune from suit with respect to state law claims pursuant to Ky. Rev. Stat. 44.072, and with respect to all claims by virtue of their sovereign immunity because they are arms of the state for Eleventh Amendment purposes. [R. 30-1, pp. 3-6] Conway further asserts that the individual capacity claims against him fail to adequately state a claim for relief, or in the alternative that he is entitled to absolute prosecutorial immunity or qualified immunity. Id. at pp. 6-7. Lowe has responded by providing further historical context to his claims, largely in response to Conway's asserted entitlement to prosecutorial and/or qualified immunity [R. 44, pp. 2-6], to which Conway has replied [R. 47].

Having review the matter, Lowe's claims against the Commonwealth of Kentucky Attorney General's Office and Kentucky Attorney General Jack Conway in his official capacity must be dismissed as barred by the Eleventh Amendment. The official capacity claim against Conway is, in reality, a claim against the Attorney General's Office, Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003), and that state agency is an arm of the Kentucky state government entitled to sovereign immunity under the Eleventh Amendment. Cf. VIBO Corp., Inc. v. Conway, 669 F.3d 675, 691 (6th Cir. 2012).

With respect to Lowe's allegations against Kentucky Attorney General Jack Conway in his individual capacity, his claims are either barred by the statute of limitations or fail to ...


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