Benton v. Kentucky Community and Technical College, No. 5:2014cv00322 - Document 10 (E.D. Ky. 2014)

Court Description: MEMORANDUM OPINION & ORDER: 1) Federal claims asserted in 1 original and 5 amended complaints are DISMISSED WITH PREJUDICE; Benton's claims under state law are DISMISSED WITHOUT PREJUDICE. 2) Court will enter a judgment w this Order. 3) Court CERTIFIES that any appeal would not be taken in good faith. 4) This matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 9/4/2014.(SCD)cc: Pro Se Pla(via US Mail)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON DAVID LEWIS BENTON, SR., Plaintiff, V. KENTUCKY COMMUNITY & TECHNICAL COLLEGE, Defendant. *** Plaintiff David *** Lewis Jeffersonville, Indiana. ) ) ) ) ) ) ) ) ) ) Civil Action No. 5: 14-322JMH MEMORANDUM OPINION AND ORDER *** *** Benton, Sr., is a resident of Proceeding without an attorney, Benton has filed an original and amended complaint against the Kentucky Community & Technical College System ( KCTCS ) in Versailles, Kentucky. [R. 1, 5] The Court has granted Benton s motion to proceed in forma pauperis by separate Order. In his original complaint, Benton [R. 4] alleged that KCTCS instilled in him the false hope that he had a reasonable chance of employment upon graduation notwithstanding his prior criminal record, but that potential employers in his chosen fields of study routinely discriminate [R. 1, p. 2] conduct against job criminal applicants background with checks criminal and records. Benton sought $2.5 million in damages and an 1 apology for unspecified civil, federal, city/state violations. [R. 1, p. 3] In his amended complaint, Benton contended that the conduct foregoing Amendment, 18 U.S.C. violated § 522.020, and 522.050. 1038, his and rights Ky. under Rev. the Stat. First 367.170, [R. 5, p. 1] The Court must conduct a preliminary review of Benton s complaint because he has been granted permission to proceed in forma pauperis and because he asserts claims against government officials and entities. district court malicious, must fails to 28 U.S.C. §§ 1915(e)(2), 1915A. dismiss any state claim a claim that upon is which A frivolous relief may or be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Benton s complaint under a more lenient attorney. standard because he is not represented by an Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff s factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). As this Court has determined in another case filed by the plaintiff, Benton v. Kentucky Community & Technical College, No. 14-42-JMH (E.D. Ky. 2014), Benton s complaint must be dismissed 2 for lack of subject matter jurisdiction. prohibits matter a federal jurisdiction district over a court suit The Eleventh Amendment from for exercising money damages subject brought directly against the state, its agencies, and state officials sued in their official capacities. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 687-88 (1993); Cady v. Arenac Co., 574 F.3d 334, 342 (6th Cir. 2009). KCTCS was created by Kentucky statute, Ky. Rev. Stat. 164.580, is part of Kentucky s 164.001(16), postsecondary and education Kentucky law system, Ky. establishes Rev. that Stat. state institutions of higher education under KRS 164 are agencies of the state under Ky. Rev. Stat. 44.073(1). Because state law directly governs KCTCS s creation and operations, it is an arm of the state for Eleventh Amendment purposes under Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The Court must dismiss Benton s complaint for lack of subject matter jurisdiction. Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir. 1999); McCollum v. Owensboro Community & Technical College, No. 4:09CV-121-M, 2010 WL 1742379, at *2 (W.D. Ky. April 29, 2010). In addition, Benton s federal claims must be dismissed with prejudice. Benton s claim under 18 U.S.C. § 1038 - a federal criminal statute - must be dismissed for lack of standing, as 3 only a federal prosecutor, not a private citizen, may prosecute a claim for violation of its terms. State of Texas, 153 F. App x 28 U.S.C. § 547(1); Gill v. 261, 262-63 (5th Cir. 2005) ( decisions whether to prosecute or file criminal charges are generally within the prosecutor s discretion, and, as a private citizen, Gill has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute. ); Abner v. General Motors, 103 F. App x 563, 566 (6th Cir. 2004). Benton s First Amendment claim must also be dismissed with prejudice. allegations Benton he makes previously in this filed case in suit the regarding Circuit Court Jefferson County, Kentucky, in Case No. 12-CI-6215. the of In that complaint, filed on November 27, 2012, Benton alleged that he was denied employment in 2004, 2006, and 2011 because of his criminal background. 15, 2013, pending in and the That complaint was dismissed on January Benton s Kentucky appeal Court from of that Appeals. dismissal See remains Benton v. Kentucky Community & Technical College, No. 14-42-JMH (E.D. Ky. 2014) [R. 11-2, pp. 60-67, therein] The foregoing establishes that the conduct about which Benton complains occurred between three and ten years before he filed his complaint in this action on January 27, 2014, well beyond the applicable one-year statute of limitations applicable to his claims. 4 Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003); Collard v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Benton s First Amendment claims must therefore be dismissed with prejudice as time barred. Having determined that none of Benton s federal claims survive dismissal, the Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c). Mellon University v. Cohill, 484 U.S. 343 See Carnegie (1988); Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that [i]f the court dismisses plaintiff s federal claims jurisdiction pursuant can never to Rule exist , 12(b)(1), and that then supplemental [a]fter a 12(b)(6) dismissal, there is a strong presumption in favor of dismissing supplemental claims. ). Accordingly, IT IS ORDERED that: 1. amended The federal claims asserted in Benton s original and complaints [R. 1, 5] are DISMISSED WITH PREJUDICE; Benton s claims under state law are DISMISSED WITHOUT PREJUDICE. 2. The Court will enter a judgment contemporaneously with this Order. 3. The Court CERTIFIES that any appeal would not be taken in good faith. 4. This matter is STRICKEN from the active docket. 5 This the 4th day of September, 2014. 6

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