Frye v. General HughesMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of JurisdictionW.D. Ky.May 26, 2017 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE SERVANT REV. DR. COLONEL KENNETH FRYE PLAINTIFF v. CIVIL ACTION NO. (e-filed) 3:17-CV-00310-DJH UNITED STATES OF AMERICA DEFENDANT MOTION TO DISMISS The United States, by and through counsel of record, moves the Court, pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), for a proper Order dismissing the complaint in the current action. In support of the current motion, Defendant relies upon the attached memorandum. Respectfully submitted, JOHN E. KUHN, JR. United States Attorney /s/ Jason Snyder Jason Snyder Assistant United States Attorney 717 W. Broadway Louisville, KY 40202 (502) 582-6993 / Fax: (502) 625-7110 jason.snyder@usdoj.gov Case 3:17-cv-00310-DJH-CHL Document 6 Filed 05/26/17 Page 1 of 2 PageID #: 16 2 CERTIFICATE OF SERVICE I hereby certify that on May 26, 2017, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to any counsel of record. In addition, a copy was mailed to the plaintiff via the United States Postal Service, first class, as follows, using the address found in a state record related to this matter: Kenneth T. Frye 6715 Fernbush Drive Louisville, KY 40228 /s/ Jason Snyder Jason Snyder Assistant United States Attorney 717 W. Broadway Louisville, KY 40202 (502) 582-6993 / Fax: (502) 625-7110 jason.snyder@usdoj.gov Case 3:17-cv-00310-DJH-CHL Document 6 Filed 05/26/17 Page 2 of 2 PageID #: 17 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE SERVANT REV. DR. COLONEL KENNETH FRYE PLAINTIFF v. CIVIL ACTION NO. 3:17-CV-00310-DJH UNITED STATES OF AMERICA DEFENDANT MEMORANDUM IN SUPPORT OF MOTION TO DISMISS The United States, for its Memorandum in Support of Motion to Dismiss, filed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), states as follows: A one page single spaced document styled “Servant Rev Dr Colonel Kenneth Frye versus [all capital letters to this point] Fort Knox Ky General Hughes” was mailed to the Sabre & Quill, an establishment at Fort Knox, along with a state court civil summons and other documents. The aforementioned document and summons identified the plaintiff as Servant Rev. Dr. Colonel Kenneth Frye and were stamped “Jefferson Circuit Court Division Twelve (12)” and “17-CI- 02169.” As context, state records show that Kenneth Frye, in a twenty (20) day period, filed the following additional pro se actions in Jefferson County, Kentucky courts: Date Defendant sued by Kenneth Frye Case Number April 13 President Donald Trump 17-CR-1821 April 18 Pfizer Pharmaceutical 17-CR-1844 May 2 AT&T 17-CR-2170 May 2 Kentucky Fried Chicken 17-CR-2171 May 2 WalMart 17-CR-2172 Case 3:17-cv-00310-DJH-CHL Document 6-1 Filed 05/26/17 Page 1 of 4 PageID #: 18 2 May 2 Wells Fargo 17-CR-2173 May 3 VA Hospital 17-CR-2197 May 3 Facebook 17-CR-2198 May 3 Signorama Downtown 17-S-000513 The complaint is incoherent, appearing to speak of disrespect of the Holy Ghost; disrespect of Abba son and a black colonel; love of money; five drugs on which plaintiff allegedly was placed including Seroquel; deception by theft to support some lazy, Jezebel, silly ass women; and disrespect of Governor Matt Bevin. The complaint includes the words harassment, malpractice, discrimination, defamation, incarceration, deception, and destruction of property, but enunciates no facts or allegations related to any of those words, links none of them to the named defendant, and states no basis for subject matter jurisdiction. I. This Complaint Should Be Dismissed for Lack of Subject Matter Jurisdiction. Under Fed.R.Civ.P. 8(a)(1), a pleading that states a claim for relief must contain a short and plain statement of the grounds for the court’s jurisdiction, but this complaint does not state a jurisdictional basis. The plaintiff bears the burden of establishing that jurisdiction exists. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). This complaint cites no basis for subject matter jurisdiction. In addition, suits against the United States are typically barred by sovereign immunity. Kohl v. United States, 699 F.3d 935, 939 (6th Cir. 2012). “The United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). This complaint cites no waiver of sovereign immunity, and there is no authority waiving sovereign immunity for a Case 3:17-cv-00310-DJH-CHL Document 6-1 Filed 05/26/17 Page 2 of 4 PageID #: 19 3 complaint of this type. In the absence of any such waiver, a suit against the United States or any of its agencies should be dismissed. Even if the document submitted by plaintiff could somehow be construed as a claim under the Federal Torts Claims Act, subject matter would be lacking due to failure to present and exhaust an administrative claim. 28 U.S.C. § 2675(a). II. The Complaint Should Be Dismissed for Failure to State a Claim. Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions...” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. The Supreme Court has stated that although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 555 (2007) (internal citations omitted). The complaint in this matter does not satisfy any of these requirements. It does not adequately allege a specific harm to be redressed, nor grounds for any entitlement to relief. Because the complaint fails to state a claim, it must be dismissed. (A filing such as this would normally be screened and dismissed before reaching this point, but this action was filed in state court before removal to the proper court. See Pro Se Handbook for Non-Prisoners: A Simple Guide To Filing An Action Without the Assistance of Counsel, United States District Court, Western District of Kentucky, at 7; 28 U.S.C. § 1915(e)(2)(B)(ii). Upon determining that the complaint Case 3:17-cv-00310-DJH-CHL Document 6-1 Filed 05/26/17 Page 3 of 4 PageID #: 20 4 fails to state a claim, the Court can and should dismiss this action sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii), with no further briefing necessary.) III. Conclusion The Court should dismiss this case because the plaintiff has failed to establish subject matter jurisdiction and has failed to state a claim. A proposed Order is hereto attached. Respectfully submitted, JOHN E. KUHN, JR. United States Attorney /s/ Jason Snyder Jason Snyder Assistant United States Attorney 717 W. Broadway Louisville, KY 40202 (502) 582-6993 / Fax: (502) 625-7110 jason.snyder@usdoj.gov Case 3:17-cv-00310-DJH-CHL Document 6-1 Filed 05/26/17 Page 4 of 4 PageID #: 21 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE SERVANT REV. DR. COLONEL KENNETH FRYE PLAINTIFF v. CIVIL ACTION NO. 3:17-CV-00310-DJH UNITED STATES OF AMERICA DEFENDANT ORDER Defendant, United States of America, having moved the Court pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for a dismissal of the complaint in this matter, and the Court having reviewed the matter along with the filings, briefs and arguments of the Parties, and being otherwise sufficiently advised; IT IS HEREBY ORDERED that Defendant’s motion is GRANTED; accordingly, the complaint in this matter is dismissed. Tendered by: Jason Snyder Assistant United States Attorney 717 W. Broadway Louisville, KY 40202 (502) 582-6993 / Fax: (502) 625-7110 jason.snyder@usdoj.gov Case 3:17-cv-00310-DJH-CHL Document 6-2 Filed 05/26/17 Page 1 of 1 PageID #: 22