United States District Court, W.D. Kentucky, Louisivlle Division
H. McKINLEY JR. SENIOR JUDGE.
se Plaintiff Mike Kapfhammer filed the instant action.
Because Plaintiff is proceeding in forma pauper is
under 28 U.S.C. § 1915, the Court must undertake a
preliminary review of the complaint. See 28 U.S.C.
§ 1915(e); McGore v. Wriggle sworth, 114 F.3d
601 (6th Cir. 1997), overruled on other grounds by Jones
v. Bock, 549 U.S. 199 (2007). For the following reasons,
the action will be dismissed.
SUMMARY OF CLAIMS
names "Chief LMPD Conrad" as Defendant. Plaintiffs
complaint alleges in toto:
He is on purpose running out the time of my open records
request on report No. CACP18288471. He is depriving me of my
rights to body cam (Five) and Cor Came (one) by. This
incident happened last year July 15. He has had the complaint
sitting on it for a year.
relief, Plaintiff states: "I want the clock to stop on
the body cams so I can get my copies - the clock is ticking.
Seven days left."
Plaintiff is proceeding in forma pauper is, this
Court must review the instant action. See 28 U.S.C. §
1915(e)(2); McGore v. Wrigglesworth, 114 F.3d at
608. Upon review, this Court must dismiss a case at any time
if the Court 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 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.
determining whether a plaintiff has stated a claim upon which
relief can be granted, the Court must construe the complaint
in a light most favorable to the plaintiff and accept all of
the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A
complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted
"only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief." Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000). While a reviewing court must
liberally construe pro se pleadings, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to
avoid dismissal, a complaint must include "enough facts
to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Court construes Plaintiffs complaint as alleging a violation
of the Kentucky Open Records Act. However, this federal court
does not have jurisdiction to consider this state-law claim
unless diversity jurisdiction is present. Plaintiff cannot
bring this suit based on diversity jurisdiction. Plaintiff
resides in Louisville, Kentucky, as does Defendant. Under 28
U.S.C. § 1332, "[t]he district courts shall have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States; . . . ." §
1332(a)(1). There must be "complete diversity between
the plaintiffs and defendants, i.e., 'diversity
jurisdiction does not exist unless each defendant is
a citizen of a different State from each
plaintiff" Medlen v. Estate of Meyers, 273
Fed.Appx. 464, 469 (6th Cir. 2008) (quoting Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 373 (1978))
(emphasis in Owen). Clearly, complete diversity is
lacking here; moreover, Plaintiff does not allege that there
is more than $75, 000 in controversy.
Court also considers whether Plaintiffs reference to his
"rights" is intended to invoke this Court's
federal-question jurisdiction under 42 U.S.C. § 1983 as
a civil-rights complaint. However, an alleged violation of
the Kentucky Open Records Act, a state law, does not give
rise to a § 1983 claim. To state a claim under §
1983, "[a] plaintiff must allege the violation of a
right secured by the Constitution and laws of the United
States . . . ." West v. Atkins, 487 U.S. 42, 48
(1988). The Kentucky Open Records Act is a state law, and a
violation of that statute does not give rise to a § 1983
extent that Plaintiff is attempting to allege a procedural
due process claim based on his Open Records Act request, the
Kentucky Open Records Act, Ky. Rev. Stat. § 61.870
et seq., provides for an appeal process. Under Ky.
Rev. Stat. § 61.880(5)(b), an individual who receives an
unsatisfactory response, including a refusal to provide a
written response, to an open records request may appeal to
the Attorney General. The individual may then appeal the
Attorney General's decision in the circuit court of the
county where the public records are maintained. Ky. Rev.
Stat. § 61.882(1). Because Plaintiff has not alleged
that he undertook any effort to appeal under the state
appellate procedure, he cannot state a procedural due process
claim under § 1983. See Herbig v. Louisville Metro
Dep't of Corr., No. 3:19-CV-P395-RGJ, 2019 WL
4478862, at *3 (W.D. Ky. Sept. 18, 2019) (dismissing the
plaintiffs procedural due process claim regarding not
receiving a response to an Open Records Act request for
failure to state a claim because the plaintiff did not allege
that he took any effort to appeal under the state appellate
procedure); see also Violett v. Cohron, No.
1:15-CV-P142-GNS, 2016 WL 1421200, at *5 (W.D. Ky. Apr. 8,
2016). Therefore, to the extent that Plaintiff is raising a
procedural due process claim, this claim will be dismissed
for failure to state a claim upon which relief may be