Scott v. Garrard County Fiscal Court et al

Filing 65

MEMORANDUM OPINION & ORDER: (1) pltf's Fourth Amendment claim for seizure of her gate is DISMISSED WITH PREJUDICE; (2) pltf's claims arising under state law are DISMISSED WITHOUT PREJUDICE; Additionally, Court will recapitulate its previ ous dispositions of pltf's other claims: (1) on 1/20/2012, pltf's Due Process & Takings claims, brought under the Fifth & Fourteenth Amendments, were dismissed without prejudice; (2) on 2/6/2012 pltf's Equal Protection claim, brought under the Fourteenth Amendment, was dismissed without prejudice; (3) on 2/24/2012, pltf's claim for the seizure of Lanham Lane, brought under the Fourth Amendment, was dismissed with prejudice; separate judgment will issue. Signed by Judge Joseph M. Hood on 04/04/2012.(RJD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONNA SCOTT,

)
)
Plaintiff,
) Civil Action No. 5:08-cv-273
)
v.
)
)
GARRARD COUNTY FISCAL COURT, ) MEMORANDUM OPINION AND ORDER
et al.,
)
)
Defendants.
)
)
)
)
**

**

**

**

**

This matter is before the Court upon its own motion.

At

this time, Plaintiff’s only remaining claim is based upon what
she characterizes as Defendants’ seizure of a gate, in violation
of the Fourth Amendment.

Because the Court had doubts that this

purported seizure created a cognizable claim under the Fourth
Amendment,

the

Court

ordered

the

parties

to

submit

briefs

discussing the reasonableness (or lack thereof) of Defendants’
actions with respect to the gate.
have

now

briefed

accordingly,

this

the

issue,

matter

is

[See DE 60].

[see
ripe

DE
for

61,

62,

decision.

The parties
64],
For

and,
the

following reasons, the Court will dismiss Plaintiff’s remaining
claim against Defendants.
In

response

to

the

Court’s

briefing

Order,

Defendants

provided various unpersuasive reasons that Plaintiff’s remaining

federal claim should be dismissed.
Fourth

Amendment

violation

First, they argue that no

could

have

occurred,

Plaintiff had no privacy interest in the gate.

because

As Plaintiff

correctly points out, however, no privacy interest is necessary
to

establish

a

seizure

Fourth Amendment.
62-63 (1992).

that

is

otherwise

prohibited

by

the

See Soldal v. Cook Cnty., Ill., 506 U.S. 56,

Defendants also argue that Plaintiff’s interest

in the gate is insufficient to establish a property interest
worthy

of

Fourth

Amendment

protection.

In

support

of

this

notion, Defendants point out that Plaintiff did not purchase the
gate, but rather, a neighbor purchased the gate and installed it
with

the

help

Defendants’

of

Plaintiff’s

assertion,

former

however,

husband.

Contrary

Plaintiff’s

to

Complaint

establishes a possessory interest in the gate, as she avers that
it

was

located

on

her

private

property

and

that

she

had

authority to exercise control over it. See U.S. v. Elmore, 304
F.3d

557,

interest

560-61

from

(6th

ownership).

Cir.

2002)(distinguishing

There

can

be

no

doubt

possessory
that

any

possessory interest that Plaintiff had in the gate was disrupted
when the gate was removed by Defendants.
This case has troubled the Court for too long.

Plaintiff

has asserted a host of constitutional claims, all of which are
meritless under the circumstances.

Plaintiff has attempted to

smuggle into federal court what are, in essence, common issues
2

of state law by painting them as constitutional violations.

In

the course of dismissing the majority of Plaintiff’s claims, we
have explained the various reasons why those claims were not
properly before this Court.

As for Plaintiff’s remaining claim

with respect to the gate, the Court has become increasingly
aware

that

something

is

just

not

right.

Based

on

our

skepticism, the parties were required to submit briefs on the
reasonableness

of

Defendants’

actions,

but

unfortunately,

neither party got to the heart of the issue in doing so.

Time

and time again the Court has reviewed the record in an attempt
to pin down the problem and, now, no thanks to the pleadings of
either party, knows what the trouble is.
the gate itself.

It is the character of

The plain language of the Fourth Amendment

provides that “[t]he right of the people to be secure in their
persons,

houses,

papers,

and

effects,

against

unreasonable

searches and seizures, shall not be violated . . . .”
CONST. amend. IV.
paper.

U.S.

Clearly, the gate is not a person, nor is it a

Further, for the same reasons that apply to Lanham Lane

itself, the gate cannot be considered part of Plaintiff’s home
or its curtilage.

[See Court’s Memorandum Opinion of February

24, 2012, DE 60].

So, if Plaintiff is to receive any Fourth

Amendment

protection

with

respect

because the gate is an “effect.”

3

to

the

gate,

it

must

be

For the following reasons, it

is not and, therefore, Plaintiff’s claim fails as a matter of
law.1
In
1987),

Allinder

v.

plaintiffs

State

of

challenged

Ohio,
an

Ohio

808

F.2d

law

1180

that

(6th

allowed

Cir.
state

officials to conduct warrantless searches of apiaries and other
beekeeping areas.

In determining that apiaries are “effects”

under the Fourth Amendment, the court reasoned that, not only
were

the

apiaries

commercial

property,

they

were

movable,

personal property, which were, in fact, moved from time to time.
Id. at 1186.

As such, the court determined that they were

“expressly afforded protection by the fourth amendment.”

Id.

(citing Oliver v. U.S., 466 U.S. 170, 177 (1984)(“The Framers
would

have

understood

the

term

‘effects’

to

be

limited

to

personal, rather than real, property.”)); see also Altman v.
City

of

High

2003)(internal

Point,
citation

N.C.,

330

F.3d

194,

omitted)(“[E]ffects

201

(4th

referred

only

Cir.
to

personal property, and particularly to goods or moveables.”).
Under Kentucky law, fixtures are considered part of the
realty to which they are attached and, thus, they are subject to
the same rights as the real property itself.

Southern Indus.,

LLC v. Maxine, LLC, No. 2008-CA-002311-MR, 2009 WL 4060698, at

1

The Court expresses no opinion as to any possible state law
claim that Plaintiff may have for physical damage done to the
gate itself.
That issue, however, is for another day in some
other court.
4

*2

(Nov.

25,

2009

Ky.

Ct.

App.)(unpublished

opinion)(citing

Pennington v. Black, 88 S.W.2d 969, 973 (Ky. 1935)).

To analyze

Plaintiff’s rights as to the gate without considering the gate’s
relationship to Lanham Lane would be a fiction in which the
Court is not inclined to indulge.

While it is true that the

gate – in and of itself - is movable property, Plaintiff did not
intend for it to be such when she had it installed it across
Lanham Lane.
factors,

The test for identifying fixtures involves three

which

include:

“[f]irst,

annexation

to

the

realty,

either actual or constructive; second, adaption or application
to the use or purpose to which that part of the realty to which
it is connected is appropriated; and third, intention to make
the article a permanent accession to the freehold.”

Id. (citing

Doll v. Guthrie, 24 S.W.2d 947, 948 (Ky. 1929)).

According to

Plaintiff’s

gate

Complaint,

she

“installed

a

locking

across

Lanham Lane,” which Defendants removed by cutting it from its
posts
gate’s

with

a

blowtorch.

intended

purpose

Also,
was

according

dependent

to
upon

Plaintiff,
its

the

physical

annexation to Lanham Lane – namely, to restrict access to what
Plaintiff contends is her private property.

The most heavily

weighted factor, however, is the intention of the party that has
made the annexation.

Id. at *3.

Plaintiff does not contend,

and it is illogical to think, that her installation of the gate
was intended to be anything other than a permanent change to
5

Lanham Lane.
the

gate,

Based on the foregoing, the Court concludes that

considering

its

use

at

the

time

of

the

purported

seizure, is properly considered a fixture rather than an effect.
Because fixtures, aside from those located within a home or its
curtilage, are not within the realm of protection afforded under
the Fourth Amendment, Plaintiff’s claim with respect to the gate
fails as a matter of law and will be dismissed with prejudice.
In

addition

Plaintiff
Court’s

brings

to

her

claims

several

supplemental

arising

state-law

jurisdiction

under

claims

under

28

federal

pursuant
U.S.C.

§

law,

to

the

1367(a).

But, “[w]hen all federal claims are dismissed before trial, the
balance of considerations usually will point to dismissing the
state law claims . . . .”

Musson Theatrical, Inc. v. Fed.

Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996); see also
28 U.S.C. § 1367(c)(3)(a district court may decline to exercise
supplemental jurisdiction when it has “dismissed all claims over
which it ha[d] original jurisdiction.”).

As discovery has not

been completed and the Court sees no other factors that weigh in
favor of retaining supplemental jurisdiction over the state law
claims,

Plaintiff’s

claims

arising

dismissed without prejudice.
Inc.,

392

exercise

of

F.3d

195,

211-12

supplemental

under

state

law

will

be

See Harper v. AutoAlliance Int’l,
(6th

Cir.

jurisdiction

remain).
6

2004)(discussing

when

no

federal

the

claims

Accordingly, IT IS ORDERED:
1) that Plaintiff’s Fourth Amendment claim for the seizure
of her gate is DISMISSED WITH PREJUDICE; and
2)

that

Plaintiff’s

claims

arising

under

state

law

are

DISMISSED WITHOUT PREJUDICE.
Additionally,

the

Court

will

recapitulate

its

previous

dispositions of Plaintiff’s other claims:
1) On January 20, 2012, Plaintiff’s Due Process and Takings
claims, brought under the Fifth and Fourteenth Amendments, were
dismissed without prejudice;
2) On February 6, 2012 Plaintiff’s Equal Protection claim,
brought under the Fourteenth Amendment, was dismissed without
prejudice; and
3) On February 24, 2012, Plaintiff’s claim for the seizure
of

Lanham

Lane,

brought

under

the

Fourth

Amendment,

was

dismissed with prejudice.
A

separate

judgment,

in

accordance

foregoing rulings, will issue.
This the 4th day of April, 2012.

7

with

all

of

the