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McCord v. Board of Education of Fleming County

United States District Court, E.D. Kentucky, Lexington

March 31, 2017

MINNIE McCORD, individually and as next friend of L.M., and MATTHEW McCORD, Plaintiffs,


          Joseph M. Hood Senior U.S. District Judge.

         This matter is before the Court upon a number of motions, each addressed in turn below.


         Plaintiffs Minnie and Matthew McCord, each proceeding pro se, complain of a litany of abuses at the hands of the various defendants. In short, Plaintiff Minnie McCord was a teacher in the Fleming County School District until the termination of her employment on April 15, 2014. The termination of her employment followed an incident that occurred when she hired a student to engage in some manner of work at her home which, in turn, led to criminal allegations involving drugs, alcohol, and sex by that student on February 14, 2014. After the allegations were made by the student, Minnie McCord was suspended with pay on February 17, 2014, pending an investigation of the matter, at which time she was placed under restrictions by her employer requiring her to have no contact with students, school district personnel, and to not be on school property. Eventually, she was arrested on March 4, 2014, and charged with two counts of unlawful transaction with a minor and trafficking in marijuana under 8 ounces.[1] The criminal complaint upon which this arrest was effected was taken by Jared Wagner, a trooper with the Kentucky State Police. Plaintiff Minnie McCord was arraigned on the charges in that complaint on March 6, 2014, then tried before a jury and acquitted of all charges on August 28, 2014.

         Plaintiffs complain that their rights, including Minnie McCord's right to due process and Matthew McCord's right to associate with other minors, were violated by virtue of the actions undertaken by Defendants to bring about these charges, to terminate Minnie McCord's employment, and to continue both criminal and administrative process against and involving her, all in violation of 42 U.S.C. § 1983, citing a number of provisions of the federal constitution.[2] Plaintiffs also complain that these wrongs were perpetrated by various defendants' misuse of what Plaintiffs term “non-public information” of which Plaintiffs did not learn until March 6, 2014.[3] Plaintiffs further aver that they only learned of the entirety of the evidence used in determining whether Minnie McCord's employment should be terminated when she received it from her attorney in November 2015, during administrative proceedings related to her appeal from the termination of her employment. Those administrative proceedings involved the Kentucky Board of Education, then headed by Commissioner of Education Terry Holliday, now retired.

         Defendant Robert L. Chenoweth of Chenoweth Law Office served as counsel for Defendant Board of Education of Fleming County, Kentucky, in matters against Plaintiff Minnie McCord. Plaintiffs aver that both Defendants Brian Creasman and Tom Price served as Superintendent of the Fleming County School District, that Defendant Mark Leet served as Principal of Fleming County High School, that Defendant Thomas MacDonald served as a “board of education attorney[]”, and that Defendant John Price served as the county attorney for Fleming County during the relevant times and were each, in their own way, responsible for the wrongs allegedly committed against Plaintiffs in the time frame set forth above.


         “A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).

         Rule 12(b)(5) provides that an action may be dismissed for “insufficient service of process.” Fed.R.Civ.P. 12(b)(5). Generally, the plaintiff bears “the burden of establishing [the service's] validity.” Metro. Alloys Corp. v. State Metals Indus., Inc., 416 F.Supp.2d 561, 563 (E.D.Mich. 2006). Courts may look to “record evidence” and “uncontroverted affidavits” in determining whether plaintiffs have met this burden. Id.

         To survive a Rule 12(b)(6) motion to dismiss, “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). The plausibility standard is met when the facts in the complaint allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint need not contain “detailed factual allegations, ” but must contain more than mere “labels and conclusions.” Id. Put another way, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).


         The Court first turns its attention to Plaintiffs Minnie and Matthew McCord's Motion for Summary Judgment [DE 50] with respect to fraud, which is a state law claim. In light of their Notice [DE 76], in which they seek to “dismiss Kentucky State Law Claims and state this civil action is for monetary damages for the violation and deprivation of Federal Civil Rights, ” this Motion is now moot and will be denied.


         Next, Defendant Terry Holliday has filed a Motion to Dismiss [DE 22] the claims against him for insufficient service of process, and Plaintiffs' have responded in their Motion to Substitute Party [DE 42].[4] Holliday served as the Commissioner of Education for the Commonwealth from August 5, 2009, to September 1, 2015, and retired on September 1, 2015. He was no longer an officer of the Commonwealth of Kentucky nor a resident of the Commonwealth of Kentucky at the time that Plaintiffs filed their Complaint on March 4, 2016, and had no office at 500 Mero Street, CPT, Frankfort, KY 40601, where Plaintiff sought to perfect service by certified mail. Plaintiffs do not contest these facts.

         As such, there was a failure of service under Fed.R.Civ.P. 4(e) because service, as attempted, did not include personal delivery to Holliday, leaving a copy at his dwelling or usual place of abode, or delivering a copy to an agent authorized by appointment or by law to receive service of process, nor did it comport with the requirements of state law, which would permit service by other means. Under Kentucky Civil Rule 4.04(8), “[s]ervice may be made upon an individual out of this state . . . by certified mail in the manner prescribed in Rule 4.01(1)(a) or by personal delivery of a copy of the summons and of the complaint . . . by a person over 18 years of age.” In the absence of adequate service of process, this Court may not exercise personal jurisdiction over Holliday and the claims against him must be dismissed.[5]See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”). Accordingly, the claims against him will be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) and (5).


         Next, the Court considers Defendant John Price's Motion to Quash [DE 35], in which he affies that the summons and a copy of the Complaint were sent to his office via non-restricted delivery mail, where they were signed for by his secretary, Rhonda Hawkins. Price further affies that he has never authorized Hawkins to accept service of process on his behalf. In their response [DE 49], Plaintiffs argue that service was valid since Hawkins accepted it and that she should have refused to accept service if she was not authorized to do so. The Court agrees with Price that this is not enough and that the procedural requirement of service of summons has not been satisfied. The Court does not have personal jurisdiction over Price and the claims against him will be dismissed. See Omni Capital Int'l, 484 U.S. at 104; Fed.R.Civ.P. 12(b)(2) and (5).


         The Court considers, as well, Plaintiffs Minnie and Matthew McCord's Motion for Service [DE 38] to be made pursuant to Fed.R.Civ.P. 4(c)(3) by a Marshal or Someone Specially Appointed with respect to Defendants Terry Holliday and Tom Price. Fed.R.Civ.P. 4(c)(3) provides that, “[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 . . .” Plaintiffs requested to proceed in forma pauperis in this matter under 28 U.S.C. § 1915 [DE 2], but their Motion was denied without prejudice to a further filing supported by the appropriate materials. Plaintiffs then paid their filing fee of $400.00 instead of renewing their motion to proceed in forma pauperis, and, thus, the Court “may” order service by a United States marshal but is not obliged to do so. The court declines to do so, however, because it finds that Plaintiffs' claims are so completely devoid of merit that the Court lacks subject-matter jurisdiction to hear the claims against Holliday and Price. The claims against them in their official capacities are barred by sovereign immunity and those against them in their individual capacities are barred by operation of the statute of limitations, as explained elsewhere in this Memorandum Opinion & Order. This Court therefore, upon its own motion, dismisses any further claims against Holliday, in his individual capacity, and Price, in his individual and official capacity, and will deny Plaintiffs' Motion for Service as moot. Fed.R.Civ.P. 12(b)(1) and (6).


         Defendant Jared Wagner has filed a Motion to Dismiss Plaintiffs' claims against him on a number of grounds [DE 8]. Notably, he argues that any claims against him in his official capacity as a Kentucky State Trooper are barred by sovereign immunity. With respect to any claims against him in his individual capacity under 42 U.S.C. § 1983 for malicious prosecution or other violations of Plaintiffs' federal constitutional rights, he argues that they are barred by the applicable statute of limitations.

         Defendant Robert L. Chenoweth has filed a First Motion to Dismiss for Lack of Jurisdiction [DE 29] and a Motion to Dismiss in Response to Plaintiffs' Amended Summons and Reply in Support of Chenoweth Law Office's Motion to Dismiss for Lack of Jurisdiction [DE 59], arguing that the Court lacks jurisdiction over the ...

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