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Douglas v. Daviess Co. Fiscal Court

United States District Court, W.D. Kentucky, Owensboro Division

April 17, 2018

DAVID B. DOUGLAS PLAINTIFF
v.
DAVIESS CO. FISCAL COURT DEFENDANT

          MEMORANDUM OPINION

          Joseph H. McKinley, Jr., Chief Judge United States District Court.

         This matter is before the Court on initial review of Plaintiff David B. Douglas's pro se, in forma pauperis complaint pursuant to 28 U.S.C. § 1915(e)(2). For the reasons that follow, the Court will dismiss the action.

         I.

         In the caption and parties section of the complaint form, Plaintiff names one Defendant: Daviess County Fiscal Court.[1] He asserts federal-question jurisdiction and lists the following federal statutes and provisions of the U.S. Constitution at issue: “Civil Rights Act of 1964 Pub L 88-352 78 Stat 241 Bill of Rights Amendment 1, 5.”

         In the complaint, Plaintiff raises two issues. First, Plaintiff alleges, “The Judge of the Daviess Co Fisal Court has threaten Plaintiff life, or well being.” Specifically, he claims, “Judge threaten to shoot Plaintiff just before reelection of 7-2014.” He also alleges that “Deputy employed by the Daviess Co. Fisal Court (who name is un known) just prior to the incident [with the Judge] made statmen to plaintiff he's glad plaintiff had sense enough to walk away in threaten manner.” Plaintiff claims that “Both Threats . . . took place at the O'boro Health park, under their code of conduct” and that “Both Threat appear still to be in effect.”

         Second, Plaintiff “issue[s] a complaint of Discrimination against the Daviess Co. Fisal Court” because it maintains a statue “[o]n Public property, the lawn of the court House” that was “given to it by a racist group ‘The Daugthers of te Confederactacy.'” He alleges that the statue was “[g]iven to the court about 1900” and that the “soilder (the statue image) refused to exchange black prisoners of war saying they were not human often scalping and killing them.” Plaintiff indicates that the Confederacy opposed equal rights for blacks and that “[i]t appear the Fisal Court is in agreement with the confederate's views and the statue statement. Along with the entire community. I disagree with the statue comment and consider it a violation of my Civil Rights.” Further, in a complaint form Plaintiff filed with the Kentucky Commission on Human Rights (KCHR), he indicates that he is African-American and that the Confederate statue has caused him to lose his “sense of belonging to the community and disrespect especially when having to go to the courthouse.”

         As relief, Plaintiff seeks “$7, 000, 000 minimum, Threats on life exist to this date. Statue on open display claiming my heros are those who say I'm not human on their (public) property.” He also seeks damages based on “Undue stress for the concern of Plaintiff's life - freedom of religion [and] Discrimination.” Additionally, in the KCHR complaint form, Plaintiff sought removal of the Confederate statue off public property. The Court construes the complaint as seeking the same injunctive relief in this action.

         II.

         Because Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the Court must undertake a preliminary review of the complaint. See 28 U.S.C. § 1915(e)(2); 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). On review, 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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)).

         III.

         Because Plaintiff alleges constitutional violations by a municipal actor, the Court construes Plaintiff's claims as being brought under 42 U.S.C. § 1983. Vistein v. Am. Registry of Radiologic Technologists, 342 Fed.Appx. 113, 127 (6th Cir. 2009) (“To proceed on a claim under 42 U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived the plaintiff of a right secured by the Constitution or laws of the United States.”); Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987) (“[I]n cases where a plaintiff states a constitutional claim under 42 U.S.C. § 1983, that statute is the exclusive remedy for the alleged constitutional violations.”), vacated and remanded on other grounds, 488 U.S. 1036 (1989).

         A. Claims of Threats by a Judge and Deputy

         Although Plaintiff mentions a “Judge” and a “Deputy” in the complaint, he does not name them as Defendants, and the Court does not consider them to be parties to this action. Even if they were, the claims against them are untimely. The statute of limitations for 42 U.S.C. § 1983 actions is governed by the limitations period for personal injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Kentucky, § 1983 actions are limited by the one-year statute of limitations found in Ky. Rev. Stat. § 413.140(1). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Although the statute of limitations is an affirmative defense, a court may raise the issue sua sponte if the defense is obvious from the face of the complaint. Fields v. Campbell, 39 Fed.Appx. 221, 223 (6th Cir. 2002) (citing Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988)). The threatening incident about which Plaintiff complains with respect to the Judge and Deputy occurred in July 2014, three years prior to the filing of this complaint on August 24, 2017. While Plaintiff states, “Both Threat appear still to be in effect, ” he alleges no facts supporting this broad and conclusory allegation, see Brown v. Wal-Mart Stores, Inc., 507 F. App'x. 543, 547 (6th Cir. ...


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