Doss v. Lexington Fayette Urban Cnty. Gov't

ANGEL PASTOR DOSS, Plaintiff, v. LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT, et al, Defendants.

Civil Action No. 5:15-12-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION -- LEXINGTON

July 14, 2015

MEMORANDUM OPINION AND ORDER

This matter is before the Court to address several motions filed by the parties.

Background

Angel Pastor Doss is a resident of Louisville, Kentucky. On January 16, 2015, Doss filed a civil complaint against the Lexington-Fayette Urban County Government ("LFUCG"), the Boone County Fiscal Court ("BCFC"),¹ and the Commonwealth of Kentucky ("Kentucky"). In his complaint, Doss indicates that he has extensive experience working as a "jockey agent" for the thoroughbred horse industry. [R. 7, p. 2] Although the allegations in his complaint are somewhat disjointed and unclear, Doss indicates that on January 22, 2014, he was arrested for speeding while driving on Interstate 64, perhaps in Boone County. [R. 7, p. 3] Doss was arraigned on that charge in Louisville, Kentucky, and was then transferred to the Fayette Circuit Court in Lexington, Kentucky, to answer a charge that he had violated the terms of his probation. Id.

Doss was released on his own recognizance on February 7, 2014. On April 24, 2014, Doss moved to discharge the public defender assigned to represent him in the probation revocation case. Following proceedings on May 22, 2014, the probation revocation chargeswere dismissed on June 28, 2014. [R. 7, p. 5] However, on July 28, 2014, Kentucky's Department of Transportation suspended Doss's driver's license, and gave him thirty days to respond. Doss alleges that at an August 28, 2014, hearing before the Boone Circuit Court, the presiding judge "allowed [plaintiff] to leave the court room with driving privileges ..." Although his next allegation is unclear, Doss suggests that on October 2, 2014, he filed a motion to reopen the case in the Boone Circuit Court because he was tried in abstentia; however, he was ordered to pay the remaining fine or face jail time. [R. 7, p. 5] Doss indicates that his driving privileges were restored on January 20, 2015.

Doss's first amended complaint sets forth seven claims. Dodd contends that:

1. All of the defendants violated 18 U.S.C. §§ 241, 242 - federal statutes which criminalize deprivations of, or conspiracies to violate, federal civil rights - by "violat[ing] my free exercise and enjoyment of rights and privileges secured by the Constitution or laws of the United States."

2. All of the defendants violated Ky. Rev. Stat. 30.125 - which requires circuit court clerks to report the final disposition of criminal cases to Kentucky's Administrative Office of the Courts - by failing to preserve and disclose evidence and breaching an unidentified contract.

3. LFUCG and Kentucky violated Kentucky's implementation of the Interstate Agreement on Detainers, Ky. Rev. Stat. 440.450, and Interstate Compact for Adult Offender Supervision, Ky. Rev. Stat. 439.561.

4. All of the defendants violated 18 U.S.C. §§ 1505, 1506, 1510, 1512, 1513, 1514, 1514A, 1516, and 1519 - federal statutes which criminalize or provide remedies for acts to obstruct justice - by "dishonest management and failing to uphold a sworn oath of office."

5. All of the defendants violated 18 U.S.C. § 371 - which criminalizes offenses or frauds directed against the United States - by "mis[using] confidential information."

6. LFUCG and Kentucky "used defamatory language which caused injury to my reputation."

7. BCFC violated 18 U.S.C. § 3585(b) by not "allow[ing] for time served."

[R. 7, pp. 5-8]² For relief, Doss seeks $12.15 million in damages from LFUCG, $5.05 million in damages from BCFC, and from Kentucky, Doss requires "employment as Kentucky's Racing Ambassador for the horse." [R. 7, p. 8]

On February 24, 2015, Kentucky and BCFC moved to dismiss the complaint. [R. 12, 13] Before responding, Doss filed a second amended complaint on February 26, 2015, in which he partially modified the factual basis for his claims, recharacterized four of them as arising under a curious and uncertain amalgam of federal criminal statutes, Kentucky law, and civil rights claims under 42 U.S.C. § 1983, and added five new pendent state law claims. [R. 16] Because Doss did not obtain leave of the Court to file his second amended complaint, Kentucky and BCFC moved to strike it from the record. [R. 18, 19] Doss filed a combined response to these motions. [R. 20] Doss also filed a motion for default judgment against LFUCG and Kentucky [R. 23], to which Kentucky has responded [R. 24]. LFUCG has not appeared or filed an answer to the complaint in this action. All pending motions have been thoroughly briefed and are ripe for decision.

Discussion

A. Motion for Default Judgment.

As a preliminary matter, Doss's motion for default judgment against LFUCG and Kentucky [R. 23] must be denied. Doss contends that he served both defendants on January 21, 2015, that neither has filed an answer or other defense to his claims, and that default was entered against them on April 24, 2015. [R. 23, p. 1] Each of Doss's three contentions is incorrect.

On January 29, 2015, Doss filed a "Certificate of Service" with the Court which indicates that he sent a copy of the complaint by regular mail to each of the defendants. [R. 3, pp. 1-3] But federal law requires a plaintiff to personally serve a copy of the complaint, accompanied by a properly-completed summons issued by the Clerk of the Court, to the chief executive officer of the state agency or county government. See Fed. R. Civ. P. 4(a)-(c), (j)(2)(A). Thus Doss's use of regular mail does not constitute effective service. A federal plaintiff may also avail himself of service methods permitted by Kentucky law, Fed. R. Civ. P. 4(j)(2)(B), but the Kentucky Rules require service by certified or registered mail upon the Kentucky Attorney General or, for LFUCG, upon its chief executive. CR 4.01(1)(a), 4.04(6)-(7); Davenport v. Norsworthy, 2003 WL 21714085, at *2 (Ky. App. 2003). Here, the record does not reflect that Doss obtained a court-issued summons or served a summons and complaint upon the defendants either personally or by certified mail. If Doss only attempted service by the means suggested by his "Certificate of Service" [R. 3], none of the defendants was properly served with process, as each contends. [See R. 12, p. 2 n.1 ("The Commonwealth has not received proper service of Plaintiff's Complaint under Fed. R. Civ. P. 4."); R. 13, p. 7 n.4 (noting that Doss served the Boone County Clerk's Office instead of BCFC, and did not appear to either include a summons form or use certified mail)]

Second, LFUCG's obligation to respond to Doss's complaint is not triggered until it is properly served with process. Fed. R. Civ. P. 12(a)(1)(A)(i). And because Kentucky has filed a motion to dismiss the complaint under Rule 12, it need not file an answer until after the Court resolves its motion. Fed. R. Civ. P. 12(a)(4)(A). Third, Doss did not request or receive entry of default against the defendants as required by Rule 55(a). Had he requested such entry, the Clerk of the Court would rightly have denied the request for Doss's failure to filethe proof of service required by Rule 4(l)(1). For these reasons, Doss's motion for default judgment must be denied.

B. Motion to Dismiss the First Amended Complaint.

Kentucky and BCFC have moved to dismiss Doss's first amended complaint for failure to state a claim. [R. 12, 13] Kentucky contends that it is entitled to dismissal of Doss's complaint because it merely references a laundry list of federal and state statutes, without explanation of the basis for claims under them, and that some of the referenced sections self-evidently do not apply to state, as opposed to federal, officials. [R. 12, pp. 2-7] Kentucky, construing Doss's first amended complaint as asserting claims under 42 U.S.C. § 1983, also asserts it is entitled to sovereign immunity from Doss's claims. Id., pp. 7-10. For its part, BCFC contends that Doss failed to properly serve it with the complaint [R. 13, p. 7], his complaint fails to state a claim against it because the federal statutes cited by Doss relate to proceedings involving federal, not state, agencies and courts, id., pp. 8-13, and fails to state a claim under 42 U.S.C. § 1983 under any of the constitutional amendments Doss referenced in passing in the heading of his complaint [R. 13, pp. 14-17].

In response to these motions, Doss makes one argument: that his complaint contains sufficient factual matter to satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8. [R. 20, pp. 2-3] Kentucky and BCFC have each filed replies in further support of their motions, noting that Doss has at least partially failed to address their arguments. [R. 21, 22] Doss has also filed a one-paragraph sur-reply to the motions to dismiss [R. 26], which the Court will disregard as having been filed without obtaining prior leave of the Court to file it. LR 7.1.

Ordinarily, the Court would address Doss's filing of a second amended complaint [R. 16] and the defendants' motions to strike it [R. 18, 19] before evaluating their motions todismiss his first amended complaint for failure to state a claim. But here, Doss's first amended complaint set forth legal claims entirely different from those he subsequently asserted in his second amended complaint, and it is appropriate to test the sufficiency of Doss's initial claims first. This is particularly so because, while the defendants read Doss's first amended complaint very broadly to assert claims under 42 U.S.C. § 1983, the Court cannot stretch even the liberality afforded to pro se pleadings so far. Because Doss is proceeding without counsel, the Court liberally construes his legal claims in his favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). But "[o]rdinary civil litigants proceeding pro se, however, are not entitled to special treatment ..." McKinney v. Roadway Express, Inc., ...