Combs v. Breathitt County Fiscal Court et al

Filing 8

MEMORANDUM OPINION & ORDER: (1) 3 Motion to Dismiss in Part is GRANTED. It is further ordered (2) W/in 21 days, parties shall meet. (3) W/in 10 days after the meeting, file a joint status report. Signed by Judge Joseph M. Hood on 9/27/2017.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
SHARON COMBS,
Plaintiff,
v.
BREATHITT COUNTY FISCAL COURT,
et al.,

)
)
)
)
)
)
)
)
)

Civil No. 5:16-cv-464-JMH

MEMORANDUM OPINION AND ORDER

Defendants.
***

***

***

***

This matter is before the Court upon Defendants’ Motion to
Dismiss in Part or in the Alternative for Partial Summary Judgment
[DE

3].

Plaintiff

has

filed

a

Response

[DE

4]

stating

her

objections to the Motion, and Defendants have filed a Reply [DE 5]
in

further

support

of

their

motion.

It

is

now

ripe

for

consideration, and the Court concludes that it shall be granted
for the reasons stated in this Memorandum Opinion and Order.
I.

FACTUAL BACKGROUND
The complaint alleges that on or about July 21, 2015, long

time Breathitt County Clerk Tony Watts informed the Breathitt
County Fiscal Court that he would be retiring.

At that time,

Plaintiff was a Deputy Clerk and had about 10 years of experience
in the Clerk’s office.

Plaintiff alleges Breathitt County Judge

Executive John Lester Smith had the sole responsibility to appoint
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the next County Clerk. Through the “grapevine,” the Clerk’s office
employees heard that Judge Smith was going to appoint Mary Lois
Stevens as the new County Clerk.1

Stevens had lost in two prior

elections to County Clerk Watts and had never worked in the County
Clerk’s office.

On November 6, 2015, Plaintiff’s coworker Mary

Rebecca Curtis filed her intention to run for the County Clerk
position. On November 13, 2015, the day before the new appointment
would be effective, Stevens came into the Clerk’s office around
noon and informed Plaintiff and two other employees they had until
that night to inform her whether they wished to be her Deputy
Clerks.

Curtis, on the other hand, was told her services were no

longer needed.

Id. ¶ 16-23.

Plaintiff accepted the position of

Deputy Clerk that Stevens offered.
In January of 2016, Stevens, acting Clerk, filed her intention
to run for the County Clerk position against Curtis. Id. ¶ 24 –
27.

Plaintiff supported her longtime friend, Curtis, during the

2016 election, rather than her current boss, Stevens.
Plaintiff makes a number of factual allegations regarding her
treatment after voicing her public support for Curtis in the
election.

These allegations are not pertinent to the legal issues

in the partial Motion to Dismiss and will be addressed as needed

1

Judge Smith initially appointed Harold Hutchinson, but he resigned November
14, 2015.
2

at another junction in this litigation.
the election over Stevens.

In May 2016, Curtis won

Plaintiff worked on election night,

and alleges she was pushed down a flight of stairs by a supporter
of Stevens.

As a result of her fall, Plaintiff used her Family

and Medical Leave Act (FMLA) rights and took one week off work.
In a recorded conversation, Stevens terminated Plaintiff from
the position of Deputy Clerk upon her return from FMLA leave.
Stevens opined that Plaintiff was not loyal, among other things.
Stevens allegedly stated Plaintiff had asked the doctor to be off
and that it had placed her “in a bind,” implying that she had
spoken

to

Plaintiff’s

medical

providers.

Plaintiff’s week off work a “vacation.”

Stevens

called

Stevens indicated she

would fight Plaintiff’s unemployment claim and would not give her
a recommendation. Id. ¶ 55 – 66.
Plaintiff alleges that Stevens’ actions against her were
political in nature, illegal and resulted in her losing her long
term

employment,

wages

and

benefits.

The

Plaintiff

alleges

Breathitt County Administrative Code applied to her, that it sets
forth a procedure for dismissal of an employee, and this process
was not followed in regard to the dismissal of Plaintiff. Id. ¶ 68
– 73.
The Plaintiff alleges the following causes of action based on
the factual allegations in the Complaint:
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(1)

political discrimination in violation KRS 67.710;

(2)

violations

of

Sections

2

and

3

of

the

Kentucky

Constitution;
(3)

wrongful discharge pursuant to Kentucky common law;

(4)

violations of the Fourteenth Amendment to the United
States Constitution;

(5)

violations of her First Amendment rights to free speech,
affiliation, and association; and

(6)

violations of her FMLA rights.

The Plaintiff claims as a result of the discriminatory conduct
she has been deprived of and continues to be deprived of past and
future wages, and other employment privileges she would have
received absent the discrimination. The plaintiff also alleges
that as a proximate result of the defendants’ conduct she has
suffered and continues to suffer from humiliation, embarrassment
and stress. The Plaintiff claims that she is entitled to actual
damages,

including

compensatory

damages

and

damages

for

humiliation and suffering, punitive damages, reasonable attorney
fees, and declaratory and injunctive relief. Id. Count I, ¶ 74 –
86.
II.

STANDARD

To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to state
4

a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is met
when the facts in the complaint allow “the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.” Id. The complaint need not contain “detailed
factual allegations,” but must contain more than mere “labels and
conclusions.” Id. Put another way, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. ANALYSIS
a. Sovereign and Official Immunity
Breathitt County Fiscal Court is an arm of the Commonwealth
of Kentucky and, thus, has sovereign immunity from claims where
immunity is not waived in the absence of an exception.

“Kentucky

counties are cloaked with sovereign immunity [which] flows from
the Commonwealth's inherent immunity by virtue of a Kentucky
county's

status

as

an

arm

or

political

subdivision

of

the

Commonwealth . . . and can only be waived by the General Assembly.”
Lexington-Fayette Urban Cty. Gov’t v. Smolcic, 142 S.W.3d 128, 132
(Ky. 2004.)

The Court will grant Defendants’ motion to dismiss

the state-law claims against Breathitt County Fiscal Court.
The

claims

against

Stevens

and

Smith

in

their

official

capacities are merely different ways of pleading actions against
5

Breathitt County.
the

state

also

“The absolute immunity from suit afforded to
extends

to

public

officials

sued

in

their

representative (official) capacities, when the state is the real
party against which relief in such cases is sought.”
Davis, 65 S.W.3d 510, 518 (Ky. 2001).

Yanero v.

See also Jones v. Perry

Cty. Fiscal Court, 185 F.Supp.3d 947, 961 (E.D.Ky. 2016).

(“In

Kentucky, a county judge executive sued in his or her official
capacity is cloaked with the same immunity as the government or
agency he/she represents.”)(internal citation and quotation marks
omitted).

Thus, Stevens and Smith are entitled to immunity for

the claims against them in their official capacities.
Accordingly, Plaintiff’s state-law claims (Counts I and III)
against Breathitt County Fiscal Court and Stevens and Smith in
their official capacities will be dismissed pursuant to sovereign
immunity.
b. Claims

under

Sections

2

and

3

of

the

Kentucky

Constitution
Plaintiff’s Kentucky Constitution claims in Count II of the
Complaint likewise fail as a matter of law.

Kentucky state law

does

action

not

recognize

Constitution.

a

private

cause

of

under

its

Jackson v. Murray State University, 834 F.Supp.2nd

609, 614-15 (W.D.Ky. 2011).

Plaintiff has not cited any Kentucky

statute that could serve as a vehicle for these claims (in the
6

same

way,

for

example,

42

U.S.C.

§

1983

does

for

federal

constitutional violations), and the Court is aware of no such
statute.

See Tallman v. Elizabeth Police Dept., 344 F.Supp.2d

992, 997 (W.D.Ky. 2004).

The Kentucky Supreme Court has held that

the statute which authorizes a private right of action for damages
for any person injured by the violation of a statute, KRS 446.070,
does not extend to claimed violations of the Kentucky Constitution.
St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011).
Accordingly, the Court finds that Kentucky law does not
recognize a private cause of action for violations of the Kentucky
Constitution.

The Court will grant Defendants’ motion to dismiss

Count II of Plaintiff’s Amended Complaint.
IV.

CONCLUSION

For the reasons stated above, the Count II will be dismissed;
Counts I and III (the Kentucky state law claims) against the
Breathitt County Fiscal Court, Mary Lois Stevens in her official
capacity, and John Lester Smith in his official capacity will be
dismissed.

The following claims remain: Counts IV and V against

the Breathitt County Fiscal Court; Counts I, III, IV, V, and VI
against Mary Lois Stevens, Individually; Counts IV, V, and VI
against Mary Lois Stevens, in her official capacity; Counts IV and
V against John Lester Smith, in his official capacity; and Counts
I,

III,

IV,

and

V

against

John
7

Lester

Smith,

Individually.

Defendants did not request the Court consider the federal law
claims

in

Counts

IV,

V,

or

VI

in

their

Motion

to

Dismiss,

therefore, the Court did not address those claims herein.
Accordingly, IT IS ORDERED:
(1) that Defendants’ Motion to Dismiss in Part [DE 3] is
GRANTED.
Pursuant to Fed. R. Civ. P. 16 and 26, IT IS FURTHER ORDERED
as follows:
(2) that within twenty-one (21) days from the date of service
of this Order, the parties, by counsel, shall meet, either in
person or by telephone, to discuss the nature and basis of their
claims and defenses and the possibilities for a prompt settlement
or resolution of the case, to make or arrange for the disclosures
required by Fed. R. Civ. P. 26(a)(1), as amended December 1, 2010,
and to develop a proposed discovery plan. See Fed. R. Civ. P.
26(f), as amended December 1, 2015.
(3)

that within ten (10) days after the meeting the parties

shall file a joint status report containing:
(a)

the discovery plan. In formulating their plan, the

parties should consider the concerns described in Fed. R. Civ. P.
26(b)(1), as amended December 1, 2015, as well as the Court’s
belief that discovery should last between three and five months.

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(b)

the parties' estimate of the time necessary to file

pretrial motions.
(c)

the parties' estimate as to the probable length of

(d)

the dates mutually convenient for trial.

(e)

the parties' decision as to whether the action may

trial.

be referred to a United States magistrate judge for trial pursuant
to 28 U.S.C. § 636(c).
(f)

the

parties’

determination

as

to

whether

the

resolution of the case may be aided by mediation or other special
procedures as authorized by statute or local rule.
Each party is directed to advise the Court at the time of the
submission

of

the

joint

report

of

all

parent

corporations,

subsidiaries, affiliates, members and/or partners with which it is
associated.
This the 27th day of September, 2017.

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