Al Maqablh v. Heinz
| Decision Date | 12 December 2016 |
| Docket Number | CIVIL ACTION NO. 3:16-CV-289-JHM |
| Parties | ALI AL MAQABLH PLAINTIFF v. CRYSTAL L. HEINZ et al. DEFENDANTS |
| Court | U.S. District Court — Western District of Kentucky |
Pro se Plaintiff Ali Al Maqablh brings this action in forma pauperis. Because Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the Court must undertake a preliminary review of the complaint. See 28 U.S.C. § 1915(e); McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following reasons, the action will be dismissed in part and allowed to proceed in part.
Plaintiff brings this action against several governmental entities (Trimble County, Kentucky; Jefferson County Sheriff's Department; Trimble County Sheriff's Department; Louisville Metro Corrections; the Commonwealth of Kentucky; and the Kentucky State Police); several governmental employees (Crystal L. Heinz, Trimble County Attorney; Kim Vittitow, Trimble County Attorney staff; Perry Arnold, former Trimble County Attorney;1 Kentucky State Police employees David Trimble, Matt Whalen, James Phelps, and Charles Ferris; and two unknown Jefferson County Sheriff deputies); and a private citizen, Lindsey Alley, the mother of Plaintiff's minor child. The complaint cites to 18 U.S.C. §§ 1341, 1342, and 1349, as well as to 42 U.S.C. §§ 1983 and 1985. It also raises various state-law claims.
Plaintiff states that in April 2014 he "began interacting with" Trimble County "to inquire on ways to reach out to his estranged and then pregnant wife" Defendant Lindsey Alley. He states that he was instructed by the Trimble County Attorney's Office to call the Kentucky State Police and request a "'welfare check'" on Defendant Alley. He states that on April 28, 2014, he spoke with Defendant David Trimble about the welfare check. Defendant Trimble indicated that Defendant Alley was still pregnant but was irritated by the welfare check and would be filing retaliatory charges. Plaintiff states that on April 30, 2014, under the guidance of Defendants Trimble and Matt Whalen, Defendant Alley "filed a perjured complaint alleging that Plaintiff was her former boyfriend who is now harassing her with threatening and alarming emails with no legitimate purpose." He alleges that Defendant Perry Arnold on behalf of Defendant Alley sought an arrest warrant under Ky. Rev. Stat. § 525.080 (harassing communications). Plaintiff alleges that this statute is vague and unlawful.
Plaintiff states that on May 20, 2014, he filed a petition in the Trimble Family Court to allow him to preserve his as-yet unborn child's umbilical cord for medical use. According to the complaint, the next day he was "falsely arrested" by two Jefferson County Sheriff deputies. He states that he was released on $250 bail early the next day on condition of "no contact" with Defendant Alley. He states that on June 10, 2014, he "appeared on arraignment in Trimble County District Court and motioned the court to remove the 'no contact' order from the bail conditions to allow him from seeing his child." Apparently, the result of that hearing was that the judge ordered that Plaintiff should have no contact with the child or mother. He states that he was unable to see his child for five months.
Plaintiff alleges that on July 21, 2014, Defendant Arnold wrote Plaintiff that, if Plaintiff wanted the misdemeanor case against him dismissed, he was required to accept a diversionagreement that included no contact with Defendant Alley or "face a trial with a potentially xenophobic jury from rural Kentucky."
Plaintiff states that in April 2015 he requested another welfare check because he believed that the child had been left alone with a family member of Defendant Alley who was prohibited from being with the child. It appears that a few days later Defendant Alley pressed what Plaintiff calls "malicious charges" with help from Defendant James Phelps with the Kentucky State Police who, according to Plaintiff, swore falsely that Plaintiff had "'falsely reported an incident.'" Plaintiff further alleges that on April 7, 2015, Defendants Crystal Heinz, Alley, and Phelps reached an agreement, and a harassing-communications charge was filed against Plaintiff. He states that on April 18, 2015, the Trimble District Court informed him that the County Attorney opposed expungement of the harassing-communications charge and ordered Plaintiff to appear before the Court on April 28, 2015. Plaintiff states that on April 30, 2015, he filed an administrative complaint against Defendant Phelps, but the Kentucky State Police declined to investigate.
Plaintiff alleges that on September 24, 2015, he informed Defendant Alley that he would be filing for expanded visitation, to which Defendant Alley "threatened and blackmailed Plaintiff with more malicious charges." He alleges that Defendant Alley unlawfully withheld Plaintiff's minor child from his scheduled visitation on March 27, 2016. Plaintiff therefore requested a March 27, 2016, welfare check, and was told the child was fine. The next day, Plaintiff filed a motion of civil contempt in Trimble Family Court.
Plaintiff states that he saw the child on March 31, 2016, at which time the child appeared to have suffered injuries to his face, eye, and thigh. He reported this to Child Protective Services, and while they were investigating, Defendant Charles Ferris of the Kentucky StatePolice appeared and "seemed to have knowledge of the injuries and immediately proceeded to threatening and intimidating Plaintiff . . . reminiscent of R-rated mafia movies." He alleges that Defendant Ferris "counseled, aided, and abetted" Defendant Alley on how to file "malicious and retaliatory charges." On May 9, 2016, Plaintiff was served with a new complaint including charges of falsely reporting an incident and harassment.
The complaint alleges that between February 3, 2015, and June 12, 2015, Defendants Trimble County Attorney Heinz and Vittitow committed racial and ethnic profiling. Plaintiff alleges that evidence released in Trimble Family Court to his attorney on May 9, 2016, "suggests" that Defendants Heinz and Vittitow committed fraud by intercepting communication when Defendant Vittitow fraudulently listed her business address and phone number as Plaintiff's physical address and telephone number. The complaint also alleges that in June 2015 Defendants engaged in unlawful use of a federal administrative subpoena harassing his alma matter.
Plaintiff asks for various relief including having the Kentucky Bar Association investigate and suspend Heinz's law license; having the FBI, the Kentucky Attorney General, and the Postal Inspector investigate and prosecute Defendants; issuing a declaratory judgment that Defendants Trimble County, Arnold, Heinz, Phelps, Trimble, Whalen, and Ferris have unlawfully deprived Plaintiff of his First Amendment right to free speech; and issuing a declaratory judgment that Ky. Rev. Stat. § 525.080 and § 519.040 are void for vagueness.
Because Plaintiff is proceeding in forma pauperis, 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).
Tortious interference with business 18 U.S.C. §§ 1341, 1342, 1349
With regard to these statutes, Plaintiff alleges that Defendants Heinz and Vittitow "conspired to impersonate" him and "intercepted correspondence directed to him via U.S. mail, misrepresented him and inserted false address."
Title 18 of the United States Code contains federal criminal statutes. Plaintiff as a private citizen may not enforce the federal criminal code. Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam); Abner v. Gen. Motors, 103 F. App'x 563, 566 (6th Cir. 2004). "It is well settled that the question of whether and when prosecution is to be instituted is within thediscretion of the Attorney General." Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965). The Court does not have the power to direct that criminal charges be filed. Peek v. Mitchell, 419 F.2d 575, 577-78 (6th Cir. 1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972). Therefore, this claim will be dismissed.
§ 1985 claims
In a 42 U.S.C. § 1985 action, a court "must look to the most analogous statute of limitations of the state in which the cause of action arose." Bedford v. Univ. of Louisville Sch. of Med., No. 88-6423, 1989 WL...
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