United States District Court, E.D. Kentucky, Southern Division, London
LARRY W. SCOTT, JR., Plaintiff,
THE COMMONWEALTH OF KENTUCKY, Defendant.
OPINION & ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
se Plaintiff Larry W. Scott, Jr., initiated this 42
U.S.C. § 1983 action against the Commonwealth of
Kentucky. See DE 1. Scott has not paid the $350.00
filing fee or $50.00 administrative fee, nor has he filed a
motion for leave to proceed in forma pauperis.
Anticipating a forthcoming IFP request,  the Court screens
this matter under 28 U.S.C. § 1915(e)(2). See
Id. (“Notwithstanding any filing fee . . . the
court shall dismiss the case at any time if the court
determines that . . . (B) the action . . . is frivolous . . .
[or] fails to state a claim on which relief may be
granted[.]”); see also Apple v. Glenn, 183
F.3d 477, 479 (6th Cir. 1999) (Even in the absence of an IFP
request, “a district court may, at any time, sua
sponte dismiss a complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous,
devoid of merit, or no longer open to discussion.”).
complaint must set forth sufficient allegations to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). The Court screens frivolous complaints. See
Neitzke v. Williams, 109 S.Ct. 1827, 1831-32 (1989)
(describing as “frivolous[, ]” claims lacking
“an arguable basis either in law or in fact”);
Apple, 183 F.3d at 479. When testing pro se
pleading sufficiency, the Court applies a tolerant
construction, accepting as true all non-conclusory factual
allegations and liberally construing legal claims toward
encompassing a valid claim for relief. Davis v. Prison
Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012). The
Court's liberal construction obligation has limits.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989);
Wilson v. Lexington Fayette Urban County Government,
No. 07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007).
The Court will not “conjure allegations on a
litigant's behalf.” Erwin v. Edwards, 22
Fed.Appx. 579, 580 (6th Cir. 2001); see also Coleman v.
Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
(construed) complaint, Scott states that he “files this
motion against the Defendants to seek compensation for
injuries suffered by the plaintiff, due to the illegal and
unconstitutional acts of the defendants.” DE 1 at 1.
According to Scott, “[t]he defendants either elected,
appointed or contract employees of the Commonwealth of
Kentucky, ” falsified affidavits to obtain a warrant
for Scott's arrest. Id. at 1-2. Specifically,
Scott alleges that Officer Steve Owens of the Barbourville,
Kentucky Police Department obtained a warrant causing Scott
to be falsely imprisoned from September 5, 2015, through
April 22, 2016. Id. at 2. Scott further states that,
on April 22, 2016, Scott presented evidence to Knox County,
Kentucky Circuit Court Judge Gary Lay proving that Scott did
not violate any state law and, accordingly, Scott secured
dismissal of the state criminal case against him.
Id. at 2. Scott alleges that the criminal charges
against him were filed in September 2011 by Officer Owens and
the case was prosecuted by Knox County Commonwealth's
Attorney Jackie Steele. Id. at 2-3. Scott claims to
have suffered physical and sexual assault during custody,
which he alleges has resulted in ongoing emotional and
psychological injuries. Id. at 3. Based on these
allegations, he claims the Commonwealth of Kentucky owes him
monetary compensation for physical, emotional, and
psychological injuries. Id. at 4, 6.
complaint fails for multiple reasons. First, despite his
reference to “acts of the defendants, ” DE 1 at
1, the only entity from whom Scott appears to be seeking
recovery is the Commonwealth of Kentucky. The Eleventh
Amendment bars Scott's claim against the Commonwealth.
See Harrison v. Michigan, 722 F.3d 768, 771 (6th
Cir. 2013) (“‘There can be no doubt . . . that
suit against [a] State and its Board of Corrections is barred
by the Eleventh Amendment, unless [the State] has consented
to the filing of such a suit,' or unless Congress has
expressly abrogated Eleventh Amendment immunity.”)
(quoting Alabama v. Pugh, 438 U.S. 781, 782 (1978))
(other citations omitted). “It is well established that
§ 1983 does not abrogate the Eleventh Amendment.”
Id. (citing Quern v. Jordan, 440 U.S. 332,
341 (1979)). Nor has the Commonwealth of Kentucky waived its
Eleventh Amendment immunity. See Sefa v. Kentucky,
510 Fed.Appx. 435, 437 (6th Cir. 2013); see also Gibbons
v. Kentucky Dept. of Corrections, No. 3:07-CV-P697-S,
2008 WL 412847, at *1 (W.D. Ky. Sept. 4, 2008) (citing
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 687-88 (1993) (“Absent waiver,
neither a State nor agencies acting under its control may be
subject to suit in federal court.”) (internal quotation
marks and citation omitted)).
although Scott's complaint does not specifically identify
Officer Owens, Judge Lay, or Commonwealth's Attorney
Steele as defendants, to the extent that his complaint could
be construed as including distinct claims against any of
these individuals, res judicata bars such claims. Scott, in
this District, previously pursued this and other claims
against these individuals arising from the same events relied
on here. See Scott v. Hammons, et al., No.
6:16-cv-18-GFVT (E.D. Ky.), ECF No. 1 (Complaint). Judge Van
Tatenhove dismissed Scott's claims against Officer Owens,
Judge Lay, and Commonwealth's Attorney Steele with
prejudice on initial screening. See Scott v.
Hammons, No. 6:16-CV-18-GFVT, 2016 WL 7404702, at *4
(E.D. Ky. Dec. 21, 2016).
Judge Van Tatenhove dismissed Scott's claim against
Officer Owens both because Scott's complaint that the
police officers (including Officer Owens) “negligently
performed their investigation fail[ed] to state a claim of
constitutional dimension, ” and also because
“police officers who participate in a criminal
prosecution are entitled to absolute immunity from civil
rights claims asserted by the accused complaining that the
evidence presented was incomplete or false[.]”
Id. at *3 (citations omitted). Judge Van Tatenhove
found that Judge Lay and Commonwealth's Attorney Steele
were likewise entitled to immunity. Id. (“The
conduct about which Scott complains is clearly within the
judge's and prosecutor's exercise of their respective
functions during the prosecution. See Huffer v.
Bogen, 503 Fed.Appx. 455, 459-60 (6th Cir. 2012);
Howell v. Sanders, 668 F.3d 344, 349-52 (6th Cir.
2012). Each is therefore entitled to absolute immunity
against Scott's claims, which will be dismissed with
prior with-prejudice dismissals bar any current Scott claims
against Officer Owens, Judge Lay, and Commonwealth's
Attorney Steele. As the Sixth Circuit has explained:
Res judicata generally includes two separate concepts - claim
preclusion and issue preclusion. Claim preclusion, or true
res judicata, refers to [the] effect of a prior judgment in
foreclosing a subsequent claim that has never been litigated,
because of a determination that it should have been advanced
in an earlier action. Issue preclusion, on the other hand,
refers to the foreclosure of an issue previously litigated.
Mitchell v. Chapman, 343 F.3d 811, 818 n.5 (6th Cir.
2003) (citing Migra v. Warren City School Dist.
Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)). As to claims
explicitly litigated previously, issue preclusion bars
rehashing of such allegations against Officer Owens, Judge
Lay or Commonwealth's Attorney Steele here.
claim preclusion bars any alternative theories arising out of
his arrest and imprisonment. Application of claim preclusion
requires: “(1) a final judgment on the merits in a
prior action; (2) a subsequent suit between the same parties
or their privies; (3) an issue in the second lawsuit that
should have been raised in the first; and (4) that the claims
in both lawsuits arise from the same transaction.”
Wheeler v. Dayton Police Dep't, 807 F.3d 764,
766 (6th Cir. 2015) (citations and quotation marks omitted).
Judge Van Tatenhove issued a final, merits decision in a suit
based on the same events and involving the same parties.
Thus, to the extent that there is any variation between the
claims actually litigated previously and the claims Scott
asserts here, his present claims are barred as ones that he
could and should have brought in the prior case. See,
e.g., Wheeler v. Dayton Police Dep't, 807
F.3d 764, 766 (6th Cir. 2015) (“With these assertions
already in his complaint, Wheeler should have taken the next
step and alleged (based on these same facts) that the bench
warrant leading to his 2012 arrest was
Scott's claims are untimely. The Court may dismiss a
claim plainly barred by the applicable limitations period
upon initial screening. Jones v. Bock, 127 S.Ct.
910, 921-22 (2007) (“If the allegations, for example,
show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for
failure to state a claim.”); Franklin v.
Fisher, No. 16-6464, 2017 WL 4404624, at *2 (6th Cir.
May 15, 2017) (“The district court properly dismissed
Franklin's complaint for failure to state a claim upon
which relief may be granted because it is obvious from the
face of her complaint that almost all of her claims are
barred by the applicable statute of limitations.”);
Castillo v. Grogan, 52 Fed.Appx. 750, 751 (6th Cir.