Scott v. Garrard County Fiscal Court et al
Filing
52
MEMORANDUM OPINION & ORDER: (1) that pla shall Show Cause with 14 days why her claims should not be dismissed w/out prejudice; (2) that all briefing of other issues, including the issue of ownership of Lanham Lane & its status as a private or county road, remains STAYED & HELD IN ABEYANCE until dfts' motion to dismiss for lack of subject matter jurisdiction is resolved. Signed by Judge Joseph M. Hood on 5/6/11.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONNA SCOTT,
Plaintiff,
v.
GARRARD COUNTY FISCAL COURT,
et al.,
Defendant.
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Civil Action No. 5:08-273-JMH
MEMORANDUM OPINION & ORDER
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Defendants have filed a Motion to Dismiss For Lack of Subject
Matter Jurisdiction [DE 47], pursuant to Fed. R. Civ. P. 12(b)(1)
and (h)(3).
In their Motion, they argue that this Court lacks subject
matter jurisdiction over Plaintiff’s 42 U.S.C. § 1983 claim under
28 U.S.C. § 1331.
Defendants argument fails, however, since this
Court has jurisdiction over matters which arise under 42 U.S.C. §
1983, “a law [. . .] of the United States” as specified in 28
U.S.C. § 1331.
Further, under 28 U.S.C. § 1343, this Court has
jurisdiction “of any civil action authorized by law . . . [t]o
redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by any
Act of Congress providing for equal rights of citizens or of all
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persons within the jurisdiction of the United States.”
In other
words, this Court has subject matter jurisdiction over Plaintiff’s
claim since she claims, using the mechanism provided for in 42
U.S.C. § 1983, that Defendants acted to deprive her of her property
in violation of the Constitution and under color of state law.
There is no merit to Defendants’ argument that this Court has no
subject matter jurisdiction over the matter before it.
However,
Defendants
do
make
a
persuasive
argument
that
Plaintiff cannot, at this time, state a claim under 42 U.S.C. §
1983 for deprivation of her property without due process or without
just
compensation
under
the
Fifth
and
Fourteenth
Amendments.
Because Kentucky provides a remedy to Plaintiff for her alleged
deprivation of property that appears to this Court to satisfy the
requirements of procedural due process, the Court concludes that
Plaintiff’s claim is not ripe as she has not availed herself of
that
post-deprivation
procedure
and
properly
exhausted
those
remedies before seeking relief under 42 U.S.C. § 1983 from this
Court.
See Williamson County Reg’l Planning Comm’n v. Hamilton
Bank, 473 U.S. 172, 194-95 (1985) (holding that, if state provides
adequate procedure for seeking just compensation, plaintiff cannot
bring a § 1983 action until remedies available in state court are
utilized); “Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002)
(quoting Williamson, 473 U.S. at 195) (stating that “[I]f a
plaintiff has not pursued available state remedies, the case is not
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ripe because ‘the State's action ... is not 'complete' until the
State fails to provide adequate compensation for the taking.’”);
Hammond v. Baldwin, 866 F.2d 172, 179 (6th Cir. 1989) Spanish Cove
Sanitation, Inc. v. Louisville-Jefferson County Metro. Sewer Dist.,
72 S.W.3d 918, 922 (Ky. 2002) (Keller, J., dissenting) (citing
Commonwealth, Dep’t of Highways v. Davidson, 383 S.W.2d 346, 348
(Ky. 1964)(recognizing availability of reverse condemnation actions
under Kentucky law).
Plaintiff Scott has not averred that she availed herself of
any process available to her in the Commonwealth. [See DE 1,
Complaint, generally.] That said, in the midst of her Complaint,
Plaintiff avers that there is “no adequate post-deprivation remedy
afforded Plaintiff.” [Compl. at ¶ 24.]
Thus, the Court will
require her to show cause why the Defendants’ Motion to Dismiss
should not be granted and, specifically, requests that she address
the
adequacy
of
the
post-deprivation
process
and
remedies
identified by Defendants.
Accordingly, IT IS ORDERED:
(1)
that Plaintiff shall SHOW CAUSE within fourteen (14) days
of the entry of this order why her claims should not be dismissed
without prejudice for the reasons stated above; and
(2)
that
all
briefing
of
other
issues
in
this
matter,
including the issue of the ownership of Lanham Lane and its status
as a private or county road, remains STAYED and HELD IN ABEYANCE
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until Defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction [DE 47] is resolved by the Court.
This the 6th day of May, 2010.
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