United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on the motions to dismiss (DE 9,
23, 25) filed by several defendants and on plaintiff Mary Joe
Bundy Everage's motions to amend her complaint (DE 16)
and for summary judgment (DE 38).
is proceeding without counsel in this action. She is,
however, quite familiar with the Court having been a party to
multiple federal actions.
2005, she was indicted for attempting to impede and obstruct
the Internal Revenue Service by making threats of violence
and threats of force involving a firearm. (United States
v. Everage, No. 7:05-11-DLB (filed May 16, 2005)). In
that action, Judge David Bunning found that Everage was
suffering from a mental disease or defect rendering her
mentally incompetent to stand trial, and he ordered her
committed for treatment. (United States v. Everage,
No. 7:05-11-DLB, DE 28, Order (filed Dec. 16, 2005)). Judge
Bunning further ordered that Everage be involuntarily
administered anti-psychotic medication. (United States v.
Everage, No. 7:05-11-DLB, DE 63, Order (filed April 17,
2006)). After months of treatment, Judge Bunning determined
that Everage had recovered from the symptoms of her mental
illness to the extent that she was able to stand trial. The
United States dismissed the charges against her, and Judge
Bunning “strongly encouraged” her to continue
with the medications that were prescribed by the Federal
Medical Center. (United States v. Everage, No.
7:05-11-DLB, DE 72, Order (filed Aug. 23, 2006)).
civil action is one of at least ten complaints she has filed
in this district. Among those entities that Everage has sued
have been the United States, Wal-Mart Stores, Inc., Ford
Motor Company, the Nashville Songwriters Association
International, ABC Television Network, Inc., NBC Television
Network, Inc., Fox Broadcasting, and Walt Disney Company.
currently has two active civil actions in this Court. In one,
she alleges that she has suffered physical and mental damages
after taking the anti-psychotic drug Risperdal or risperidone
(the generic form) for ten years. She asserts various claims
against Johnson & Johnson and Janssen Pharmaceuticals,
action, Everage sues Central Broadcasting Systems
Corporation, Inc. (CBS) and various affiliates. She alleges
that CBS affiliate WYMT has hidden cameras in her home and
has transmitted her private life to other CBS stations in the
country for use in television shows including soap operas,
The Price is Right, Good Morning CBS News, and The View. (DE
1, Complaint at 7, 8.)
allegations in this action are essentially the same as those
Everage alleged in her action against ABC, NBC, Fox, and Walt
Disney. Everage v. ABC Television Network,
Inc., No. 7:18-119 (filed Nov. 16, 2018)). In that
action also, she alleged that WYMT had hidden cameras in her
home and transmitted her private life to all the major
television networks for use in television shows. Judge Robert
Wier permitted Everage to proceed in forma pauperis
in that action. Thus, he screened the complaint under 28
U.S.C. § 1915(e)(2)(B)(i), which requires that the Court
dismiss any such action that is frivolous. Judge Wier
dismissed Everage's complaint, finding it to be
“farfetched, ” and “fanciful and
fantastic.” (Everage v. ABC Television Network,
Inc., No. 7:18-119, DE 7, Opinion and Order (filed
November 29, 2018)).
defendants in this action now move under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the claims against them.
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the 'grounds' of his
'entitlement to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.'' Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
and brackets omitted). In order to survive a motion to
dismiss, the factual allegations in the complaint
''must be enough to raise a right to relief above the
speculative level.'' Id. The plaintiff must
plead ''enough facts to state a claim to relief that
is plausible on its face'' and to nudge his claim
''across the line from conceivable to
plausible.'' Id. at 570.
asserts that two of the entities named in this action are not
suable entities: CBS News This Morning and CBC Television
City. Everage does not dispute this in her response to the
motions to dismiss. Accordingly, these entities will be
dismissed from this action. Everage asserts no allegations
against defendants WKYT-TV or CBS Television Stations, Inc.
Accordingly, they must also be dismissed.
leaves defendants CBS, CBS Television Stations, Inc. and CBS
affiliate WYMT. As to the claims asserted against these
defendants, in her complaint, Everage mentions three state
law causes of action: false light, intentional or negligent
infliction of emotional distress, (DE 1, Complaint at 4),
defamation (DE 1, Complaint at 6), and invasion of privacy.
(DE 1, Complaint at 6). She also refers to several federal
statutes: 18 U.S.C. §§ 242, 245, 249; 42 U.S.C.
§ 1983; 18 U.S.C. § 2701, and the Patriot Act.
Court will begin with the federal statutes.
Everage's claims under 18 U.S.C. §§241 and 242,
these statutes criminalize conspiracies and actions to
violate civil rights. Neither statute, however, provides for
a private right of action. Thus, a private citizen lacks
standing to file a claim under these statutes. Booth v.
Henson, 290 Fed.Appx. ...