Bischoff v. Commonwealth of Kentucky, No. 3:2009cv00339 - Document 5 (W.D. Ky. 2009)

Court Description: MEMORANDUM OPINION signed by Judge John G. Heyburn, II on 11/24/2009. The Court will, by separate order, dismiss Plaintiff's complaint.cc: Counsel; Plaintiff, pro se; Defendant (AEP)

Download PDF

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE RAYMOND BISCHOFF PLAINTIFF v. CIVIL ACTION NO. 3:09-CV-339-H COMMONWEALTH OF KENTUCKY DEFENDANT MEMORANDUM OPINION Plaintiff, Raymond Bischoff, filed a complaint against the Commonwealth of Kentucky alleging violations of the U.S. Constitution, 18 U.S.C. § 242, and the Uniform Fraudulent Transfer Act (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be dismissed. I. SUMMARY OF CLAIMS Plaintiff names as Defendant the Commonwealth of Kentucky. He cites as grounds for his complaint the Fifth and Fourteenth Amendments to the U.S. Constitution, 18 U.S.C. § 242, and the Uniform Fraudulent Transfer Act. Although his complaint is not entirely clear, Plaintiff appears to be upset with the sale, without his consent, of his property after a Kentucky state court decision. As relief, he requests injunctive relief and damages. II. ANALYSIS This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d at 604-05. 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. When 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The only named Defendant is the Commonwealth of Kentucky. The Court lacks subject matter jurisdiction over Plaintiff s claims against the Commonwealth of Kentucky because the Eleventh Amendment to the U.S. Constitution specifically prohibits federal courts from entertaining suits brought directly against the states themselves. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST., amend. XI. Although the Eleventh Amendment does not address the situation where a state s own citizen initiates suit against it, case law has interpreted the amendment in such a way as to foreclose that possibility. 2 Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002) (citing Hans v. Louisiana, 134 U.S. 1 (1890)). The Sixth Circuit has opined that [a] state is sovereign within the structure of the federal system, and it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. Id. (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). There are essentially three exceptions to the rule cited above: (1) when the state consents to suit; (2) when Congress has abrogated a state s sovereign immunity; and (3) when under the fiction created by Ex Parte Young, 209 U.S. 123 (1908), a litigant seeks injunctive or prospective relief from a state officer in order to prevent future constitutional violations. See Barton, 293 F.3d at 948. None of these exceptions exist in this case. Because Plaintiff s constitutional claims against the Commonwealth of Kentucky are barred by the Eleventh Amendment, the Court will dismiss them under FED. R. CIV. P. 12(h)(3).1 III. CONCLUSION For the foregoing reasons, the Court will, by separate order, dismiss Plaintiff s complaint. Date: November 24, 2009 cc: Plaintiff, pro se Defendant 4412.009 1 If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.