United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
Lee Mayes is an inmate confined at the Lee Adjustment Center
in Beattyville, Kentucky. Proceeding without counsel, Mayes
filed a document entitled "Deprivation of Rights Under
Color of Law Pursuant to Title 18 § 242" in the
Louisville Division of the United States District Court for
the Western District of Kentucky. [R. 1.] Mayes also filed a
motion to proceed in forma pauperis. [R. 2.] That
Court concluded that while the basis for Mayes' claims
was not entirely clear, his filing should be construed as a
civil rights complaint against the Kentucky Parole Board
("KPB") pursuant to 42 U.S.C. § 1983, and
transferred the action to this Court on venue grounds
pursuant to 28 U.S.C. § 1406(a). [R. 5.] This matter now
comes before the Court for initial screening pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).
Mayes was convicted in Louisville, Kentucky on two counts of
murder and two counts of first degree robbery. He was
sentenced to two consecutive life sentences plus 32 years
imprisonment. Mayes v. Commonwealth, 563 S.W.2d 4
(Ky. 1978). The Sixth Circuit Court of Appeals vacated one of
the life sentences on habeas review, Mayes v.
Sawders, 621 F.2d 850 (6th Cir. 1980), but the other
life sentence remains in effect.
considered Mayes for parole in 1982, 1990, and 1994, but
denied parole on each occasion. [R. 1 at 2.] After the 1994
parole hearing, KPB ordered that Mayes must "serve
out" his sentence to its expiration. Mayes contends that
this effectively denied him parole permanently, and that KPB
relied upon an administrative regulation promulgated in 1989
to justify its action. [R. 1 at 2.] Mayes sought reconsideration
of KPD's parole decision in 1998, 2003, and 2006, without
success. [R. 1-1 at 7-9.]
2008, Mayes filed a petition in the Circuit Court of Franklin
County, Kentucky, seeking a declaration that KPD acted
improperly when it relied upon the revised 1989 regulation to
both deny parole and order him to "serve out" his
sentence. Mayes contended that KPD was required to use the
prior regulation enacted in 1974 - the one in effect when his
sentence was imposed in 1977 - to determine his parole
eligibility. The Circuit Court disagreed and denied the
petition. The Kentucky Court of Appeals affirmed on appeal,
noting that parole is purely a matter of legislative grace.
Mayes v. Commonwealth of Kentucky, Kentucky Parole
Board, No. 2008-CA-1889-MR, 2009 WL 1811735, at *1 (Ky.
Ct. App. Jun. 26, 2009). The Kentucky Supreme Court denied
in 2010 Mayes again challenged KPB's 1994 decision by
filing a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 in this Court. The Court denied the
petition, both because it constituted a second or successive
petition filed without permission from the Court of Appeals
for the Sixth Circuit and because it was untimely. Mayes
v. Stivers, No. 3: 10-CV-37-DCR-REW (E.D. Ky. 2010). The
Sixth Circuit then declined Mayes' motion for an order
authorizing him to raise this issue in a second or successive
petition. In re: Mayes, No. 10-6420 (6th Cir. Aug.
current petition Mayes reiterates the same claim: "that
he is entitled to [continued] review of his 1976 Life
Sentence by the Kentucky Administrative Regulations, 501 KAR
1:010 Section 4, in effect at the time of the offense for
which Petitioner was convicted." Mayes asserts that the
1994 decision by KPB and its subsequent refusals to
reconsider - the last of which was issued in 2006 - violates
the Ex Post Facto Clause and the separation of powers
doctrine. [R. 1 at 3.]
threshold matter for consideration is the characterization of
Mayes' pleading. In its Order, the Western District of
Kentucky began by noting that while Mayes had expressly
referred to 18 U.S.C. § 242 as the basis for his claims,
a private citizen lacks standing to initiate criminal
charges. [R. 5 at 1 (citing, inter alia, Saro v.
Brown, 11 Fed.Appx. 387 (6th Cir. 2001) ("A private
citizen has no authority to initiate a federal criminal
prosecution; that power is vested exclusively in the
executive branch.")).] This is plainly correct: because
a private citizen lacks a judicially cognizable interest in
the criminal prosecution of another, Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973), a civil plaintiff
has no standing to assert a claim arising under a criminal
statute. Chrysler Corp. v. Brown, 441 U.S. 281, 316
(1979) ("This Court has rarely implied a private right
of action under a criminal statute, and where it has done so
'there was at least a statutory basis for inferring that
a civil cause of action of some sort lay in favor of
someone.'"). The Sixth Circuit has expressly held
that there is no private cause of action to assert a
violation of 18 U.S.C. § 242, the very statute Mayes
relies upon as the basis for his claims here. Kafele v.
Frank & Wooldrige Co., 108 Fed.Appx. 307 (6th Cir.
more, that conclusion would necessitate dismissal of
Mayes' "petition." However, because Mayes'
complaint referenced 42 U.S.C. § 1983 and the definition
of the phrase "color of law," the Western District
broadly construed Mayes' petition as actually
constituting a civil rights complaint under Section 1983. [R.
5 at 1.] On this point, the Court must respectfully disagree.
Mayes expressly stated that 18 U.S.C. § 242 stands as
the vehicle for his claims:
"Petitioner asserts that Title 18 U.S.C. § 242 is
the proper remedy because it penalizes willful deprivation of
rights, privileges or immunities ..."
[R. 1 at 1, 3.] Mayes' statement makes plain that his
choice of 18 U.S.C. § 242 as the source for his claim
was intentional rather than inadvertent. It is one thing for
a Court to infer the basis for a claim where a pro se
plaintiff is silent or equivocal on the subject, it is quite
another to pretend that the plaintiff asserts a different
claim than the one actually written on the page simply
because that claim will necessarily fail. The appropriateness
of a court's recharacterization of a pro se plaintiffs
claim is at its lowest when the plaintiff has clearly made a
choice regarding the legal basis for his claim. Mayes having
expressly invoked one source for his claim, the Court cannot
rightfully choose another one for him under the guise of
"liberal construction." Cf. McKinney v. Roadway
Express, Inc., 341 F.3d 554, 558 (6th Cir. 2003);
Wolfe I v. United States, 111 F.2d 66, 67
(6th Cir. 1983); Superior Kitchen Designs, Inc. v.
Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148
(D. Mass. 2003) ("While the allegations of the complaint
are construed favorably to the plaintiff, the court will not
read causes of action into the complaint which are not
Mayes' sole reference to 42 U.S.C. § 1983 on a
single page of his 35-page complaint was for the limited
purpose of supporting his argument that KPB acted under
"color of law" for purposes of 18 U.S.C. § 242
when it acted (he asserts) contrary to the laws of the state
under which its authority derives. [R. 1 at 3-4.] This
reference for definitional purposes only cannot reasonably be
read to indicate the source of his claims. Third, consistent
with his express reference to a criminal statute, Mayes seeks
relief that is entirely criminal in nature when he requests
that the members of KPB be "fined not more than $1000 or
imprisoned not more than one year, or both." [R. 1 at
34.] Because Mayes' petition makes clear that he asserts
a claim under 18 U.S.C. § 242, a claim he lacks standing
to assert, the Court will deny the petition.
even if Mayes' petition could be "construed" as
constituting a civil rights complaint under 42 U.S.C. §
1983, it would be subject to summary dismissal as barred by
the statute of limitations and/or the doctrine of laches.
Mayes complains of actions taken by KPB in 1994, a date over
twenty years before he filed his petition. Even KPB's
most recent denial of his request for reconsideration was
issued in 2006, a date more than a decade before he filed his
petition. Kentucky's one-year statute of limitations
applies to civil rights claims under § 1983. Ky. Rev.
Stat. § 413.140(1)(a); Hornback v. Lexington-Fayette