United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
Ardeth Condey Finley, Jr., has filed a pro se
complaint under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961-1968
(“RICO”). [R. 1] The Court has granted his motion
to proceed in forma pauperis by separate Order.
Court must conduct a preliminary review of Finley's
complaint because he has been granted permission to proceed
in forma pauperis and because he asserts claims
against government defendants. 28 U.S.C. §§
1915(e)(2), 1915A. 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. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Finley's complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
1993, Finley was convicted of two counts of first-degree
sodomy committed against his sons, and was sentenced to a
cumulative term of 100 years imprisonment. Finley v.
Densford, 90 F. App'x 137 (6th Cir. 2004). Finley
has sought federal habeas relief from his convictions in this
Court on several occasions, without success. Finley v.
Million, No. 2: 99-CV-200-WOB-JGW (E.D. Ky. 1999);
Finley v. Crews, No. 2: 11-CV-66-GFVT-JGW (E.D. Ky.
also filed several civil complaints against the judges,
prosecutors, and other participants involved in his criminal
prosecution, seeking his release from custody, damages, or
both. These claims have been dismissed as barred pursuant to
Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) and
Heck v. Humphrey, 512 U.S. 477 (1994). See
Finley v. Densford, No. 2: 03-CV-120-WOB (E.D. Ky.
2003), aff'd, 90 F. App'x 137 (6th Cir.
2004). In a later civil suit he filed with one of his sons as
a co-plaintiff, they:
… allege that they have obtained new medical and
psychiatric evidence from 2002 through 2004. They allege that
the new evidence proves that the criminal charges filed
against Finley Jr. in 1993 were a cover-up for child abuse
that employees of two psychiatric hospitals for children in
Cincinnati committed against Finley III between 1988 and
1994, the period of time during which Finley III was a
patient in those hospitals.
Finley v. Shultz, No. 2: 05-CV-112-DLB, 2005 WL
2386225, at *1 (E.D. Ky. Sept. 27, 2005). The Court dismissed
those claims because they were barred by Heck and
because the Rooker-Feldman doctrine, “a
combination of the abstention and res judicata doctrines,
” precluded a federal court from considering them.
Id. at *3-5.
more than a decade later, Finley's present 120-page
handwritten complaint in this case asserts a species of the
same claim. In his complaint, Finley alleges that unnamed
state and federal judges, at both the trial and appellate
level, have violated his constitutional rights for more than
two decades by conspiring to cover up the actions of doctors
at two psychiatric hospitals in Cincinnati, Ohio, who
allegedly force children to take unneeded antipsychotic
medication. [R. 1 at 1-3, 113-18] Interspersed throughout
Finley's complaint are repeated criticisms of his
criminal prosecution, conviction, and post-conviction
proceedings on numerous habeas grounds, including judicial
bias, prosecutorial misconduct, and ineffective assistance of
counsel. Cf. [R. 1 at 6-23, 34-48, 73-93] At bottom, Finley
contends that his 1993 convictions were procured by the
efforts of his ex-wife and psychiatrists through intimidation
and coerced medication to force his son to provide false
testimony implicating him in the crimes charged. Cf. [R. 1 at
26-28, 49-69] Finley characterizes his allegations as setting
forth a claim under RICO, which he purports to assert on
behalf of himself and thousands of children treated at the
two hospitals from 1986 to the present. For relief, he seeks
an order compelling state officials to provide him with a
copy of his son's medical records, as well as a referral
of this matter to a “special grand jury” and the
Federal Bureau of Investigation. [R. 1 at 118-120]
alleges that state and federal judges have violated his
constitutional rights, which would suggest that he wishes to
assert claims under 42 U.S.C. § 1983 and Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). But he instead characterizes his complaint as
asserting claims under RICO. [R. 1 at 1] RICO provides a
private remedy to “[a]ny person injured in his business
or property by reason of a violation” of the Act's
criminal prohibitions. 18 U.S.C. § 1964(c). RICO's
criminal provisions provide, in part, that it is a crime for
a person to invest any income he or she derived from a
pattern of racketeering activity into an enterprise engaged
in interstate commerce. 18 U.S.C. § 1962(a). The statute
sets forth dozens of acts which constitute
“racketeering activity” for purposes of RICO. 18
U.S.C. § 1961(1).
Finley has failed to sufficiently allege either an
“enterprise” or “racketeering
activity” under 18 U.S.C. § 1962. He does not
identify the acts, actors, or victims at anything approaching
the required level of specificity for the court to determine
if they “have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are
not isolated events.” Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985). Finley's complaint is
utterly devoid of details setting forth the who, what, when,
or how of the enterprise or its activities as required by
well-established precedent interpreting the civil RICO
statute, 18 U.S.C. § 1964. Finley's allegations
manifestly fail to state a claim under the civil remedy
provisions of the RICO statute, and the complaint must be
dismissed. Cf. Girgis v. Countrywide Home Loans,
Inc., 733 F.Supp.2d 835, 854 (N.D. Ohio 2010).
complaint fares no better if the Court liberally construes
his statement that the defendants violated his constitutional
rights as attempting to assert claims under Section 1983 or
Bivens. Finley named as defendants in this action
“Don Bottom, Warden, State Courts, Federal District and
U.S. 6th Circuit Court of Appeals, et al.” [R. 1 at 1]
However, Finley's complaint is devoid of any factual
allegations at all against Warden Bottom, and therefore fails
to state a claim against him. Nwaebo v. Hawk-Sawyer,
83 F. App'x 85, 86 (6th Cir. 2003) (civil rights
complaint must allege that defendant was personally involved
in the conduct complained of) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)). In addition, state
and federal courts are instrumentalities of the state and
federal government respectively; they are not
“persons” within the meaning of Section 1983 and
are entitled to sovereign immunity from suit. Mumford v.
Basinski, 105 F.3d 264, 267 (6th Cir. 1997); Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 687-88 (1993); F.D.I.C. v.
Meyer, 510 U.S. 471, 475-78 (1994).
as Finley has been advised before, he may not utilize a civil
rights suit as a means to undermine confidence in his
criminal conviction. Heck, 512 U.S. at 481-82 (1994)
(“… when establishing the basis for the damages
claim necessarily demonstrates the invalidity of the
[plaintiff's] conviction … the claimant can be
said to be ‘attacking ... the fact or length of ...
confinement.'”). Here, throughout his complaint
Finley repeatedly asserts his innocence and contends that his
criminal conviction was the direct product of the conspiracy
and malfeasance he describes in his complaint. But the Sixth
Circuit has previously rejected Finley's attempt to use
these same claims as a basis to permit yet another petition
for a writ of habeas corpus. In re: Ardeth C. Finley,
Jr., No. 16-5038 (6th Cir. July 1, 2016). Because Finley
has thus far failed to obtain habeas relief from his
convictions on these grounds, he may not resort to civil
remedies based upon them. Reese v. Gorcyca, 55 F.
App'x 348, 350 (6th Cir. 2003).
IT IS ORDERED that:
Plaintiffs complaint [R. 1] is DISMISSED ...