United States District Court, E.D. Kentucky, Lexington
MINNIE McCORD, individually and as next friend of L.M., and MATTHEW McCORD, Plaintiffs,
BOARD OF EDUCATION OF FLEMING COUNTY, et al ., Defendants.
MEMORANDUM OPINION & ORDER
M. Hood Senior U.S. District Judge.
matter is before the Court upon a number of motions, each
addressed in turn below.
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. 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.
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. 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. 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.
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.
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)).
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.
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).
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
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]. 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.
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.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
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).
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).
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.
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 ...