Bluegrass Dutch Trust Morehead, LLC v. Rowan County Fiscal Court et al

Filing 54

MEMORANDUM OPINION & ORDER, granting 40 MOTION for Summary Judgment filed by defendants.. Signed by Judge Henry R. Wilhoit, Jr on 8/16/17.(SMT)cc: COR

Eastern District of Kentuclcy

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND

AUG 16 2017
AT ASHLAND

ROBERT R. CARR
CLERK U.S. DISTRICT COURT

CIVIL ACTION NO. 16-20-HRW
BLUEGRASS DUTCH TRUST MOREHEAD, LLC,

v.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

RAY WHITE, et al.,

DEFENDANTS.

This matter is before the Court upon Defendants' Motion for Summary Judgment [Docket
No. 40]. The matter has been fully briefed by the parties. For the reasons stated herein, the
Court finds that the Defendants are entitled to judgment as a matter oflaw.
I.

Plaintiff alleges that the Fiscal Court denied its request to erect a fence on county property
in retaliation for Plaintiffs alleged political support for then-candidate for Judge Executive
Walter "Doc" Blevins. [Verified Complaint, Docket Entry No. 1, p. 5, ir 27.]
The Plaintiff, Bluegrass Dutch Trust Morehead, LLC, owns property located at 19
Hickory Drive in Rowan County, Kentucky ("the Property"). [Verified Complaint, Docket Entry
No. 1, p. 3, ii 11.] The Property is located in Hickory Points Subdivision, which was developed
by Kinder & Ruth, Inc. [Id. at ir 14.] During development, Kinder & Ruth, Inc., granted an
easement and right of way to the Rowan County Fiscal Court.
The Plaintiff alleges that in August 2014, it began attempting to obtain what it refers to as
a "variance" from the Fiscal Court. [Id. at p. 5 ii 28.] Specifically, Plaintiff sought to obtain
permission from the Fiscal Court to erect a wrought iron fence and an electric gate on the front of

the driveway of its Property; the Fiscal Court's permission to do so is necessary because the
proposed fence and gate would encroach on the Fiscal Court's easement. [Id.]

The Plaintiff

claims that its attempts to obtain the variance have been met with "resistance, obstruction, and a
complete refusal to act." [Verified Complaint, Docket Entry No. 1, p. 5, iI 29.) Plaintiff alleges
that this "resistance" is, in fact, retaliation against the Plaintiff for its alleged support of Walter
"Doc" Blevins ("Blevins") during the 2014 Rowan County Judge Executive election contest. [Id.
at pp. 4 and 5.]
Plaintiff alleges that it, through one of its members, erected a yard sign supporting
Blevins in the campaign. [Id. at p. 4.] Blevins prevailed in the election over his opponent,
Richard White; Richard White is the brother of Defendant Ray White, one of the members of the
Rowan County Fiscal Court. [Id. at p. 4, iii! 21, 23.] Plaintiff alleges that Defendant White and
other members of the Rowan County Fiscal Court had knowledge of Plaintiffs support and were
"highly displeased that the Trust not only supported Judge Blevins but also erected a Blevins
campaign sign[.]" [Id. at p. 5, iI 27.]
At some point after August 2014, Plaintiff retained James Frazier and Jaron Blanford of
the McBrayer firm to assist it in obtaining the variance. [Verified Complaint, Docket Entry No.
1, p. 6, ir 33.] Mr. Frazier sent several letters on behalf of the Plaintiff in an effort to convince the
Fiscal Court to grant it. [Id. at pp. 6 and 7.]
These efforts culminated in Judge Blevins making a motion during a February 23, 2015,
special session to grant the encroachment; however, because no other member of the Fiscal Court
seconded the motion, it failed. [Id. at p. 7, iI 40.]
Following the failed motion, Frazier and Blanford participated in a conference call with

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Rowan County Attorney Cecil Watkins, wherein the Plaintiff alleges that Watkins stated that the
"Fiscal Court's refusal was 'payback' and 'politics."' [Verified Complaint, Docket Entry No. 1,
p. 7, ~ 42.] Plaintiff alleges that Frazier and Blanford withdrew "[a]t least in part because [they]
would be witnesses in any litigation between the [Plaintiff] and the Fiscal Court." [Id.]
The Plaintiff subsequently retained Richard Getty of the Getty Law Group, PLLC, and
filed this action, alleging violations of its First and Fourteenth Amendment rights.
The Defendants named in the Complaint are: Rowan County Fiscal Court, Ray White;
Individually and in his Official Capacity as Rowan County Fiscal Court Member; Darrell
Glover, Individually and in his Official Capacity as Rowan County Fiscal Court Member;
Charlie Winkleman, Individually and in his Official Capacity as Rowan County Fiscal Court
Member; Stanley Messer, Individually and in his Official Capacity as Rowan County Fiscal
Court Member; and James D. Nickell, Individually and in his Official Capacity as Former Rowan
County Judge Executive.
Given that Plaintiffs retaliation claims appears to rest entirely upon the statements of its
former lawyers - Mr. Frazier and Mr. Blanford - Defendants noticed their depositions and served
them with subpoenas.
However, on the day of the depositions, counsel for the McBrayer firm indicated that
neither Mr. Frazier nor Mr. Blanford would sit for their depositions, citing confidentiality
concerns under Kentucky Supreme Court Rule 3.130(1.6) (confidentiality of information) and
Kentucky Supreme Court Rule 3 .130(1.9) (duty to former clients). Counsel for the McBrayer
firm stated for the record his position that Messrs. Frazier and Blanford were prohibited from
testifying absent the informed consent of Plaintiff or a court order.

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According to Defendant's motion, counsel for Plaintiff disagreed, stating that
conversations held between former counsel and third-parties were not privileged. Tempers flared
and the deposition ended with Plaintiff's counsel announcing his intention to file a joint motion
with Defendants seeking to compel the testimony of Plaintiff's former counsel.
However, the motion was never filed. Instead, Plaintiff's counsel, the Getty Firm filed a
Motion to Withdraw. The Court sustained the Plaintiff's counsel's Motion to Withdraw and
permitted the Plaintiff thirty days to obtain new counsel.
On December 20, 2016, Plaintiff's former counsel filed a motion for additional time for
Plaintiff to secure new counsel because the prior order was sent to an incorrect address. The
Court granted the motion and permitted the Plaintiff an additional 30 days from the date of the
entry of that Order to obtain counsel.
Two days before the deadline to obtain counsel was set to expire on January 19, 2017,
Douglas Dutcher, a member of Plaintiff Bluegrass Dutch Trust Morehead, LLC, purported to file
a motion to extend the time for the Plaintiff to obtain counsel. As Mr. Dutcher is not licensed to
practice in this Court, Defendants moved to strike his request for additional time.
On February 10, 2017 Plaintiff was ordered to show cause why this case should not be
dismissed for failure to abide by the Court's order with regard to obtaining counsel.
Then, Ned Pillersdorf entered an appearance on behalf of Plaintiff, and the case seemed
to be back on track.
Defendants now seek summary judgment as to all claims alleged herein.
II.

Summary judgment should be granted "if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). A genuine issue of material fact exists only when, assuming the truth of the nonmoving party's evidence and construing all inferences from that evidence in the light most
favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for that
party. A non-moving party cannot withstand summary judgment, however, by introduction of a
"mere scintilla" of evidence in its favor. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.
2006).

III.
In its response to Defendants' dispositive motion, Plaintiff makes no argument in support
of its claims against the individual Defendants in their official capacities or against the Fiscal
Court itself. It would be appear that these claims have been abandoned.
Further, there is nothing in the record which would suggest the existence of a custom or
policy informing the acts as alleged by Plaintiff. Municipal liability only attaches where a
custom, policy, or practice attributable to the municipality was the "moving force" behind the
violation of the plaintiffs constitutional rights. Miller v. Sanilac County, 606 F.3d 245, 254-255
(6th Cir., 2010).
Stated another way - "municipal liability under§ 1983 attaches where-and only
where-a deliberate choice to follow a course of action is made from among various alternatives
by the official or officials responsible for establishing final policy with respect to the subject
matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986).
Plaintiff makes no argument in this regard and the Court finds that summary judgment

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is warranted as to Plaintiff's claims against any Defendant in his official capacity.
The claims against the Defendants in their individual capacities fail as well.
The framework within which a § 1983 claim is to be analyzed is well established:
Section 1983 does not create substantive rights but, rather,
"provides a remedy for deprivations of rights secured by the
Constitution and laws of the United States .... " Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982); Mertik v. Blalock,
983 F.2d 1353, 1359 (6th Cir. 1993). "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). "The first
step in any such claim is to identify the specific constitutional right
allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994)
(citing Graham v. Connor, 490 U.S. 386, 394 (1989) (additional
citations omitted)).

Estate of Goodin v. Knox County, Ky., 2014 WL 2719816, at *6 (E.D. Ky. June 16, 2014).

When alleging an individual-capacity claim under§ 1983 against a government official,
the plaintiff bears the burden of overcoming the official's defense of qualified immunity, which
shields government officials from personal liability for civil damages for conduct that does not
violate clearly established constitutional rights of which a reasonable person would have known.
Pearson v. Callahan, 555 U.S. 223, 231 (2009); Baker v. City ofHamilton, 471F.3d601, 605

(6th Cir. 2006). Qualified immunity is immunity from suit; "its purpose is to shield the official
from suit altogether, saving the official from the burdens of discovery and costs of trial."
Crockettv. Cumberland Coll., 316 F.3d 571, 579 (6th Cir. 2003).

The qualified immunity analysis turns on two questions: (1) whether a constitutional right
has been violated, and (2) whether the right was clearly established. Smoak v. Hall, 460 F.3d 768,

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777 (6th Cir. 2006). If the answer to either question is "no," then the public official is immune
from suit.

In its Complaint, Plaintiff alleges that the Fiscal Court's denial of its request for a variance
violated its 14th Amendment right to Due Process.
The Due Process clause protects individuals from the unjustified deprivation of a
constitutionally protected interest. "In the context of due process challenges in land use cases, a
protected property interest exists if a plaintiff has either a 'legitimate claim of entitlement' to use
his land in a certain way, or a 'justifiable expectation' that a governmental body will approve his
desired land use." McGuire v. City ofMoraine, Ohio, 178 F. Supp. 2d 882, 892 (S.D. Ohio 2001)
(citing Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992)).
However, "when a municipality retains the discretion to deny a plaintiffs requested land
use, even if all mandatory requirements are met, he does not have the requisite 'legitimate claim
of entitlement' or 'justifiable expectation' needed to establish a property interest in a particular
use of his land." McGuire, 178 F. Supp. 2d at 892-93 (citing Silver, 966 F.2d at 1036). "This is
so because ' [a]n abstract need or unilateral expectation does not suffice to create a property
interest[.]" Id. at 892 (citing Richardson v. Twp. of Brady, 218 F.3d 508, 516 (6th Cir. 2000)).
Plaintiff does not dispute Defendants statement that the Rowan Fiscal Court has
discretion over whether to grant private citizens variances, encroachments, and the like.
Because Rowan County retained discretion to deny Plaintiffs request, the Plaintiff does not have
the requisite legitimate claim of entitlement or justifiable expectation necessary to establish a
property interest. Without a protected interest, Plaintiffs due process claims fails.
It seems that Plaintiff recognizes this, as it has cited no case law to the contrary in its

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single paragraph response to Defendants' Due Process argument. Rather, it argues that the Fiscal
Court may not ''use its discretion in a political retaliatory manner." It asserts "[i]f a fact finder
finds this was retaliatory, the Plaintiffs have certainly established a cognizable due process
claim." However, merely restating an allegation as support for an argument, and failing to cite
single case, is not the way one successfully responds to a Rule 56 motion.
Plaintiff also alleges that Defendants deprived Plaintiff of its First Amendment right to
exercise free speech and support a candidate of its choosing when Defendants denied its request
to erect a fence on county property because such denial was allegedly in retaliation for Plaintiffs
political support for then-candidate for Judge/Executive Blevins.
"A retaliation claim essentially entails three elements: ( 1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person
of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two-that is, the adverse action was motivated at least in
part by the plaintiffs protected conduct." Thaddeus-Xv. Blatter, 175 F.3d 378, 394 (6th Cir.
1999).
The "protected conduct", as argued by Plaintiff, is the yard sign in support of Blevins.
The "adverse action" is the Fiscal Court's denial of Plaintiffs request for variance. Now to the
crux of the matter: can Plaintiff connect the two?
Plaintiff contends that the Rowan County Fiscal Court was motivated by "payback" and
"politics."

The conference call between Rowan County attorney Cecil Watkins and Mr. Frazier

and Mr. Blanford, During which, Watkins informed them that the Fiscal Court's refusal was
"payback" and "politics" is Plaintiffs smoking gun.
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Yet, this piece of evidence is fraught with issues. First, Watkins emphatically denies
saying anything of the sort. In an Affidavit, attached to Defendants' motion, he states: "At no
point during the conference call did I state, nor did I imply in any way, that the Rowan County
Fiscal Court's refusal to grant the Requested Encroachment was the result of 'payback' and
'politics' in relation for the Trust's alleged support of Walter "Doc" Blevins for Judge-Executive
during the 2014 election." [Affidavit of Cecil Watkins].
Second, his alleged comment to Plaintiffs former counsel is hearsay, times two.
Plaintiff does not try to persuade the Court otherwise. Instead, Plaintiff argues that the alleged
statements of Frazier, Blanford and Watkins "could fall under" Fed.R.Evid. 807, an exception to
the rule against hearsay.
In order to be admitted pursuant to Rule 807, a hearsay statement must satisfy the
following criteria: "(1) the statement has equivalent circumstantial guarantees of trustworthiness ;
(2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is
offered than any other evidence the proponent can obtain through reasonable efforts; and (4)
admitting it will best serve the purposes of these rules and the interests of justice." Fed. R. Evid.
807.
Plaintiff offers no "equivalent circumstantial guarantees of trustworthiness." Indeed, the
record suggests otherwise. As to the second requirement, it is offered as evidence of a material
fact. However, per the third requirement, it is not the most probative. There is no more
probative evidence regarding what Cecil Watkins said than the recollection of Cecil Watkins
himself, as set forth in his Affidavit.
Moreover, it is well established that hearsay cannot be considered in a summary judgment
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motion. Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994).
In an argument that smacks of desperation on Plaintiff's part, it asserts that the

temporal proximity between the erection of the yard sign and the failure of the motion provide
evidence of political animus and retaliation. In other words, Plaintiff contends that the timeline
upon which the placement of the yard sign the February 23, 2015 motion and meeting of the
Rowan County Fiscal Court can be plotted provides the causal link between its protected speech
and Defendants' adverse action.
Yet Plaintiff offers no proof of temporal proximity. A review of the Affidavit of Douglas
Dutcher, the only evidence offered in response to Defendants' dispositive motion, does not reveal
a definitive timeline regarding the erection of the yard sign as relative to the February 23, 2015
motion. Indeed, Dutcher's Affidavit fails to present any discemable evidence regarding exactly
when the sign was erected. Accordingly, Plaintiff's claim that the "timing of events" constitutes
"ample evidence of political animus" is unsupported by the record.
Further, the case law of this circuit clearly demonstrates that temporal proximity alone is
seldom sufficient to support a retaliation claim. See Cooper v. City ofN Olmsted, 795 F.2d 1265,
1272 (6th Cir. 1986) ("[t]he mere fact that Cooper was discharged four months after filing a
discrimination claim is insufficient to support an interference ofretaliation."); Nguyen v. City of
Cleveland, 229 F.3d 559, 561 (6th Cir. 2000) (rejecting plaintiff's argument that temporal
proximity alone was sufficient to support a finding of a causal relationship); Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010) ("[a]t this point, our case law can fairly be
characterized as recognizing the possibility that, on a particular set of facts, extremely close
temporal proximity could permit an inference of retaliatory motive, but also recognizing that

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often evidence in addition to temporal proximity is required to permit the inference.").
Absent an admissible statement from Watkins and a telling -timeline, Plaintiff has no
evidence as to the third element needed to prove its claim.
Plaintiff is asking the Court to infer that the Defendants were on notice of its political
affiliation by virtue of one sign, placed in one yard, in Rowan County. In order to reach this
inference, the Court must infer that Defendants were not only aware of the sign, but also that the
sign on which the property rested belonged to Plaintiff. While the Court is required to draw
reasonable inferences in Plaintiffs favor, Plaintiff asks this Court take a blind leap into an abyss.
That is too much to ask on a Rule 56 motion.
Interestingly, and further fatal to Plaintiffs claim, with regard to Defendant White,
Plaintiff argues that "a fact finder could easily find that Plaintiffs [sic] posting a political sign
that supported the opponent of the brother of Defendant Ray White, was a substantial, motivating
factor in the decision to not grant the variance." [Plaintiffs Response, p. 2.] However, this
allegation rings hollow because Defendant White did not attend the February 23, 2015, special
meeting of the Rowan County Fiscal Court where the motion to grant Plaintiff's requested
encroachment failed. [See February 23, 2015, Special Meeting Minutes, attached as Exhibit A,
RCFC 000007-000008 (noting Ray White as "absent").]
If there was anything with which to support its claims against Defendants, this was the
opportunity to present it to the Court. Plaintiff, instead, pinned all of its hopes on the Dutcher
Affidavit, which does little more than reiterate the allegations in the Complaint.

Although the

Complaint spins a compelling tale, based upon the record, there is not enough to overcome
summary judgment.

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IV.
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary
Judgment [Docket No. 40] be SUSTAINED.
This 16th day of August, 201 7.

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Signed By:

Henry R. Wilhoit. Jr.
~~.....(! United States District Judge
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