Opinion
CIV-21-915-R
11-23-2021
DENNIS RAY RIGSBY, JR., Plaintiff, v. ANDY BESHEAR, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Dennis Ray Rigsby, Jr. (Plaintiff), an Oklahoma pretrial detainee being held at the Custer County jail in Arapaho, Oklahoma has filed a pro se complaint under 42 U.S.C. § 1983 against Kentucky Governor Andy Beshear, the United States of America, and “all States of the United States.” Doc 1, at 11, 14. United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 6. Following mandatory screening of Plaintiff's complaint, the undersigned recommends the Court dismiss this case for a lack of venue, failure to state a claim, and a lack of standing.
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
I. Plaintiff's claims.
In Claim I, Plaintiff alleges that Governor Beshear, in both his official and individual capacity, has violated Plaintiff's rights under the Privileges and Immunities Clause of Article IV of the United States Constitution. Doc. 1, at 13-16. Plaintiff states that he “heard on FM Radio that Andy Beshear the Governor of the Great State of Kentucky was doing a privilege for the people to inter a contest to win 1 million . . . United States dollors if they get a covid-19 vaccine.” Id. at 14-15. He claims he wrote two letters to Defendant Beshear in Kentucky “to get [his] right to that privleg” but neither Defendant Beshear nor his staff responded to his letters. Id. at 15 (citing Atts. 1-2). He complains that three drawings for the money were held in July and August of 2021 but he was never informed if the Governor had entered him into the drawings. Id.
Plaintiff cites to Article IV, Section 2, Clause 1 of the Privileges and Immunities Clause. See Doc. 1, at 13, 15. That clause states that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1.
Plaintiff seeks monetary damages of “1½% of the amount of winnings, [his] fileing fees payed for this claim, for Governors of all states to answer all letters by United States mail or there staff to do so in a formal way . . . [and] to have it documented that someone should be held responceable if [he] get sick from covid-19 or any vareents of covid-19.” Id. at 14, 16. After he is paid his monetary damages, Plaintiff wants “to be given the jab/vaccine” and he wants “to have all people that work for the governors that recive his mail to do there job right of official government work of United States mail . . .” Id. at 16.
In Claim II, Plaintiff alleges that “all States of the United States that because of a hung jury that twice or more held jury trials again in violation of ‘we the people' constitution” have violated the Fifth Amendment's Double Jeopardy Clause. Id. at 14, 17. He explains that “When a state of the united [] states takes a person of ‘we the people' to jury trial and has a hung jury then trys to refile the charge and take a person of ‘we the people' twice or more to trial this being in violation to not only the person but all ‘we the people.'” Id. at 14, 17-18. Plaintiff argues that he “can be a Litigant on this issue even if [he has] not had a retrial” because he is “harmed on any and all violations of ‘we the people's' constitution.” Id. at 18.
Plaintiff asks this Court to order that “the judges in every state shall be bound [by the Fifth Amendment], [and] anything in the constitution or laws of any state to the contrary notwithstanding.” Id. at 17. He asks this Court to release from prison “all of ‘we the people' that have their freedoms took by this wrong” and order a conditional monetary settlement for those persons. Id. at 20.
II. The Court must screen Plaintiff's complaint.
The Court must screen Plaintiff's complaint and dismiss it, or any part of it, if it 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. See 28 U.S.C. § 1915A. The complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
The Court is also under “a continuing obligation” to examine its jurisdiction. See In re Franklin Sav. Corp., 385 F.3d 1279, 1286 n.6 (10th Cir. 2004). “Jurisdictional issues must be addressed first and, if they are resolved against jurisdiction, the case is at an end.” Id. at 1286.
Additionally, the Court must review on screening whether venue is proper “when the defense is obvious from the face of the complaint and no further factual record is required to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (internal quotation marks omitted). The Court “may dismiss under § 1915 only if it is clear that the plaintiff can allege no set of facts to support . . . venue.” Id. (internal citation and alterations omitted). This Court, “acting on its own motion, may raise the issue of whether a change of venue would be in the interest of justice.” Love's Travel Stops & Country Stores, Inc. v. Oakview Constr., Inc., No. CIV-10-235-D, 2010 WL 4811450, at *6 (W.D. Okla. Nov. 19, 2010); see also Trujillo, 465 F.3d at 1222 (“A court may sua sponte cure jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.”); Pierce v. Shorty Small's of Branson, 137 F.3d 1190, 1191 (10th Cir. 1998) (“[T]he decision of whether to dismiss or transfer [under 28 U.S.C. § 1406(a)] lies within the sound discretion of the district court.”).
This Court construes “[a] pro se litigant's pleadings . . . liberally and [holds them] to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. This Court lacks venue over Defendant Beshear and the Court should not transfer the case because Plaintiff fails to state a cognizable claim against Defendant Beshear in either his official or individual capacity.
A. Venue over Plaintiff's claim against Defendant Beshear is improper in this Court.
“[T]he term ‘venue' refers to the geographic specification of the proper court or courts for the litigation of a civil action . . . .” 28 U.S.C. § 1390(a). Plaintiff bears the burden of proving this is the proper venue for his action. Pierce, 137 F.3d at 1192.
Plaintiff sues under § 1983 for damages and injunctive relief against the Governor of the Commonwealth of Kentucky. Doc. 1, at 11, 14-16. It is apparent from the pleadings, however, that Governor Beshear does not reside in this judicial district. Id. at 11. And the events giving rise to Plaintiff's claims against Defendant Beshear - the Governor's announcement of the contest, the Governor's supposed receipt and disregard of Plaintiff's letters, and the three drawings, occurred in Kentucky, not here. Id. at 14-16.
Under the general venue statute, which governs this case, the complaint may be brought only
in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . .; or (3) if there is no district in which an action may otherwise be brought as provided in this section, and judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b); see also Anaeme v. Florida, 169 Fed.Appx. 524, 527-28 (10th Cir. 2006) (holding that the general venue statute, 28 U.S.C. § 1391(b), governed the plaintiff's claims of constitutional violations made under 42 U.S.C. § 1983).
Venue does not lie in this district. See, e.g., Azubuko v. Irish, 442 Fed.Appx. 374, 376 (10th Cir. 2011) (noting venue is “distinct from jurisdiction” and holding that, even if the district court possessed jurisdiction, the action was properly dismissed for improper venue). First, Plaintiff's own allegations confirm that he is seeking to sue a government official who works and/or resides in Kentucky. Doc. 1, at 11. Second, Plaintiff alleges the events giving rise to his claim against this Defendant occurred, not in this district or even in Oklahoma, but in Kentucky, id. at 10-11, within the territorial boundaries of the Eastern District of Kentucky. See 28 U.S.C. § 97(a) (designating Franklin County in the “Eastern District” of Kentucky). Third, there is a district in which the “action may otherwise be brought”-the Eastern District of Kentucky-and correspondingly, no indication in the record that this Defendant is subject to this Court's personal jurisdiction. See, e.g., Mosier v. Farren, 731 Fed.Appx. 808, 811 (10th Cir. 2018) (“[B]ecause venue would be proper in another district, § 1391(b)(3) isn't a potential avenue to venue.”).
Because this Defendant resides in the Eastern District of Kentucky and the events giving rise to Plaintiff's claim occurred there, venue properly lies in that district rather than this one. See, e.g., Anaeme, 169 Fed.Appx. at 527 (affirming district court's dismissal of the plaintiff's action for improper venue after determining none of the defendants were residents of New Mexico, that none of the alleged acts or incidents had occurred in New Mexico, and that there was another district in which the action may have otherwise been brought); see also Mosier, 731 Fed.Appx. at 811.
B. This case should be dismissed without prejudice rather than transferred to the Eastern District of Kentucky.
“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). The undersigned recommends dismissing this action without prejudice rather than transferring it to the Eastern District of Kentucky.
An initial inquiry into the merits of the claim against Defendant Beshear reveals Plaintiff's official capacity claim is barred by Eleventh Amendment immunity from suit. Plaintiff also fails to state a claim upon which relief may be granted against Defendant Beshear in his individual capacity.
1. Eleventh Amendment immunity bars Plaintiff's official capacity claims against Defendant Beshear.
“The eleventh amendment generally bars lawsuits in federal court seeking damages against states as well as against state agencies, departments, and employees acting in their official capacity.” Bishop v. Doe, 902 F.2d 809, 810 (10th Cir. 1990) (citation omitted). “[B]ecause ‘an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,' the Eleventh Amendment provides immunity ‘when [s]tate officials are sued for damages in their official capacity.'” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Cf. Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007). (“Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.”).
There are only three exceptions to the Eleventh Amendment immunity bar. First, Congress can abrogate Eleventh Amendment immunity by clearly expressing its intent to do so in the relevant statute. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999) (“Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment-an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance.”). Second, the State can waive its immunity. See Id. (“[A] State may waive its sovereign immunity by consenting to suit.”). Third, the action can be brought against individual state actors seeking only prospective injunctive relief to prevent a violation of federal law as enunciated in Ex parte Young, 209 U.S. 123 (1908), and its progeny. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (holding that the Eleventh Amendment does not bar “a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law”) (internal quotation marks omitted).
In § 1983 civil rights litigation, Congress has not abrogated Eleventh Amendment immunity. See Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010) (“[Section] 1983 does not abrogate a state's sovereign immunity[.]”). And although States can waive their immunity to suit in federal court through explicit statutory waivers, Kentucky has not waived its Eleventh Amendment immunity to § 1983 suits. See, e.g., O'Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994) (“Because [Kentucky] did not consent to [a § 1983] suit in federal court, the petitioner's claim is barred by the Eleventh Amendment.”). Because Defendant Beshear is a public official and Plaintiff seeks more than just prospective injunctive relief against him, the Eleventh Amendment bars Plaintiff's suit against Defendant Beshear in his official capacity.
2. Plaintiff fails to state a cognizable claim under the Privileges and Immunities Clause against Defendant Beshear in his individual capacity.
“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 and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see 42 U.S.C. § 1983 (creating a private cause of action when persons acting under color of State law violate another's “rights, privileges, or immunities secured by the Constitution and laws”). Plaintiff alleges he was deprived of his right to enter Kentucky's lottery contest in violation of the Privileges and Immunities Clause of Article IV of the Constitution. Doc. 1, at 2, 13-15.
The Supreme Court has “said that the object of the Privileges and Immunities Clause is to strongly constitute the citizens of the United States as one people, by placing the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.” McBurney v. Young, 569 U.S. 221, 226 (2013) (internal quotation marks and alterations omitted). This does not mean, however, that “state citizenship or residency may never be used by a State to distinguish among persons.” Id. (internal quotation marks and citation omitted). Nor does this mean that a state must “always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.” Id. (internal quotation marks and citation omitted). Rather, it means “that the Privileges and Immunities Clause protects only those privileges and immunities that are fundamental.” Id. (internal quotation marks and citation omitted).
The Supreme Court has identified only three “fundamental” privileges or immunities. Id. at 226-27. The opportunity to pursue a common calling, the ability to own and transfer property, and access to the courts. Id. at 226-27, 229, 231.
“[T]he Privileges and Immunities Clause protects the right of citizens to ‘ply their trade, practice their occupation, or pursue a common calling.'” McBurney, 569 U.S. at 227 (quoting Hicklin v. Orbeck, 437 U.S. 518, 524 (1978)). The Supreme Court has explained that the ability to engage in a common calling is abridged “in the sense prohibited by the Privileges and Immunities Clause” “only” when a State enacts a law “for the protectionist purpose of burdening out-of-state citizens.” Id.
Plaintiff alleges Defendant Beshear deprived him of his right to enter a lottery contest. Doc. 1, at 14-15. This is not a fundamental privilege or immunity protected by the clause. McBurney, 569 U.S. at 226-27. Because Defendant Beshear's actions, even if true, did not abridge any of Plaintiff's fundamental privileges or immunities, he fails to sufficiently allege a constitutional injury. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (stating that “§ 1983 merely provides a mechanism for enforcing individual rights secured elsewhere, i.e., rights independently secured by the Constitution and laws of the United States” and explaining that “one cannot go into court and claim a violation of § 1983-for § 1983 by itself does not protect anyone against anything” (internal alterations and quotation marks omitted)).
C. Conclusion.
Defendant Beshear is immune from suit in his official capacity and Plaintiff fails to state a claim against Defendant Beshear in his individual capacity upon which this Court could grant relief. It would thus be a waste of judicial resources to transfer a clearly doomed case. Cf. Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (“[A] court is authorized to consider the consequences of a transfer by taking ‘a peek at the merits' to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed.”). Thus, the undersigned recommends dismissing this case without prejudice to Plaintiff refiling it in the proper judicial district. See 28 U.S.C. § 1406(a).
IV. Plaintiff lacks standing to bring his second claim on behalf of “we the people” against “all states of the United States.”
“For federal courts to have jurisdiction over an action, ‘the party bringing the suit must establish standing.'” Wilderness Soc'y v. Kane Cty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). If it appears a party lacks standing, the Court may “proceed directly to that issue.” Id.
“The Supreme Court's ‘standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, . . . and prudential standing which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.'” Id. (quoting Newdow, 542 U.S. at 11). To satisfy Article III's jurisdictional standing requirements, a plaintiff must show he has suffered an injury in fact (one that is “not conjectural or hypothetical”), that is traceable to the challenged action of the defendant, and that is likely to be redressed by a favorable decision of this Court. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). To establish prudential standing, a plaintiff “generally must assert his own legal rights and interests.” Wilderness Soc'y, 632 F.3d at 1168 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). He “cannot rest his claim to relief on the legal rights or interests of third parties.” Id.; accord McGowan v. Maryland, 366 U.S. 420, 429 (1961) (“Since the general rule is that a litigant may only assert his own constitutional rights or immunities, . . ., we hold that appellants have no standing to raise this contention.”) (internal citation omitted).
Plaintiff admits he has not been retried after a hung jury. See Doc. 1, at 18. He submits he is seeking relief for alleged constitutional violations on behalf of other incarcerated individuals because “humans are connected in many ways.” Id. at 19-20.
Plaintiff does not allege an actual injury that this Court can redress with a favorable decision. Thus, he fails to satisfy Article III's genuine case-or-controversy standing requirements. And because Plaintiff cannot raise amorphous claims on behalf of others, he also lacks prudential standing to proceed in this Court. The Court should therefore dismiss Plaintiff's second claim for a lack of jurisdiction. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (holding that standing is an “indispensable part of the plaintiff's case [and] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof) (citation omitted).
V. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss this case. The Court should deny as moot Plaintiffs pending motion to proceed in forma pauperis. Doc. 2.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 14, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.