Opinion
Civil Action No. 04-CV-66-JMH.
November 18, 2004
ORDER
This matter is before the Court for consideration of the plaintiff's Motion for Reconsideration [Record No. 18].
By Memorandum Opinion and Order [Record No. 16] of October 22, 2004, the Court determined that:
• the pro se non-lawyer plaintiff was not an adequate class representative able to fairly represent the class and, thus, his motion for class action certification was denied; and
• the plaintiff had failed to show he personally had standing to bring any and all of the alleged constitutional and statutory violations and, thus, the Court was without jurisdiction and the pleadings were not in compliance with Fed.R.Civ.P. 8.
Resultingly, the Court, sua sponte, dismissed this pro se, fee-paid, internet-generated civil rights complaint for lack of jurisdiction and because it was insufficiently pled.
The plaintiff, still allegedly acting on behalf of members of the class, sets forth:
• he is confused as to why the Court, sua sponte, screened and dismissed his case before he could file a Response to the defendant's Motion to Dismiss [Record No. 9];
• he claims his Response [Record No. 17] to the defendant's Motion to Dismiss, filed three days after the Court issued its Memorandum Opinion and Order [Record No. 16] sua sponte dismissing this action, cures all deficiencies the Court set forth were the basis for its sua sponte dismissal;
• he seeks for the Court to now consider his Response [Record No. 17] in reconsidering its sua sponte dismissal;
• he conclusorily claims all members of the class have standing with regard to all claims;
• he claims, without citing any authority, that for at least one hundred years the United States Supreme Court has protected the First and Fourteenth Amendment rights of non-lawyer pro se litigants to file class actions and to represent the class.
The Response [Record No. 17]
The Court, sua sponte, dismissed the plaintiff's action without relying on defenses asserted within the Commonwealth's Motion to Dismiss [Record No. 9] and without considering the plaintiff's subsequently filed Response [Record No. 17].
The Commonwealth's Motion to Dismiss relied on Eleventh Amendment sovereign immunity as a defense for the solely named defendant, the Commonwealth of Kentucky, and claimed that because of that immunity this action for damages, declaratory and injunctive relief was subject to dismissal for want of jurisdiction. The Commonwealth's Eleventh Amendment immunity claim is a valid defense. See Pennhurst State Scho. Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 90 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); MacDonald v. Village of Northpoint, Mich., 164 F.3d 964, 970 (6th Cir. 1999). The Eleventh Amendment applies regardless of whether the suit naming the state as the defendant seeks injunctive or monetary relief. Hill v. Michigan, 62 Fed.Appx. 114, 2003 WL 21005236 (6th Cir. (Mich.)) (citing See Pennhurst, 465 U.S. at 100-01). The Commonwealth of Kentucky has not consented to civil rights suits in federal court and, thus, the plaintiff's claims against the Commonwealth of Kentucky are subject to dismissal on Eleventh Amendment grounds for lack of jurisdiction. The defendant's Motion to Dismiss is now and has previously been entitled to be granted.
The plaintiff's Response [Record No. 17] attempted to abrogate the defendant's entitlement to dismissal on Eleventh Amendment immunity grounds by ignoring the law and by scrambling the issue with a barrage of additional mere assertions. The plaintiff claims, absent any legal authority, that despite the Eleventh Amendment's complete defense he is still entitled to proceed in this action because the defense was not set out "in plain English terms," a jury must determine the facts, sovereign immunity defenses are frivolous, the defendant improperly tried to "impute" a new claim to the plaintiff, the Rooker-Feldman doctrine (which has never been previously discussed) is inapplicable, his claims are valid, service is defective, and this Court has exclusive subject matter jurisdiction. All of these red-herring topics are irrelevant.
CONCLUSION
Neither the plaintiff's Response nor his Motion for Reconsideration affords any basis for retracting the previous Memorandum Opinion and Order dismissing this action and, thus, the plaintiff's Motion for Reconsideration must be denied. Additionally, the defendant's Motion to Dismiss should be granted, as it provides additional authority for this action having been dismissed.
Accordingly, IT IS HEREBY ORDERED:
(1) The plaintiff's Motion for Reconsideration is DENIED.
(2) The defendant's Motion to Dismiss is GRANTED.