Combs v. Breathitt County Fiscal Court et al
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
BREATHITT COUNTY FISCAL COURT,
Civil No. 5:16-cv-464-JMH
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ Motion to
Dismiss in Part or in the Alternative for Partial Summary Judgment
objections to the Motion, and Defendants have filed a Reply [DE 5]
consideration, and the Court concludes that it shall be granted
for the reasons stated in this Memorandum Opinion and Order.
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
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
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
Curtis, on the other hand, was told her services were no
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 –
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
These allegations are not pertinent to the legal issues
in the partial Motion to Dismiss and will be addressed as needed
Judge Smith initially appointed Harold Hutchinson, but he resigned November
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
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
Plaintiff’s week off work a “vacation.”
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
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
The Plaintiff alleges the following causes of action based on
the factual allegations in the Complaint:
political discrimination in violation KRS 67.710;
wrongful discharge pursuant to Kentucky common law;
violations of the Fourteenth Amendment to the United
violations of her First Amendment rights to free speech,
affiliation, and association; and
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
humiliation and suffering, punitive damages, reasonable attorney
fees, and declaratory and injunctive relief. Id. Count I, ¶ 74 –
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to state
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
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).
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.
counties are cloaked with sovereign immunity [which] flows from
the Commonwealth's inherent immunity by virtue of a Kentucky
Commonwealth . . . and can only be waived by the General Assembly.”
Lexington-Fayette Urban Cty. Gov’t v. Smolcic, 142 S.W.3d 128, 132
The Court will grant Defendants’ motion to dismiss
the state-law claims against Breathitt County Fiscal Court.
capacities are merely different ways of pleading actions against
“The absolute immunity from suit afforded to
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).
See also Jones v. Perry
Cty. Fiscal Court, 185 F.Supp.3d 947, 961 (E.D.Ky. 2016).
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
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
Plaintiff’s Kentucky Constitution claims in Count II of the
Complaint likewise fail as a matter of law.
Kentucky state law
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
constitutional violations), and the Court is aware of no such
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
The Court will grant Defendants’ motion to dismiss
Count II of Plaintiff’s Amended Complaint.
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
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
Defendants did not request the Court consider the federal law
therefore, the Court did not address those claims herein.
Accordingly, IT IS ORDERED:
(1) that Defendants’ Motion to Dismiss in Part [DE 3] is
Pursuant to Fed. R. Civ. P. 16 and 26, IT IS FURTHER ORDERED
(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.
that within ten (10) days after the meeting the parties
shall file a joint status report containing:
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.
the parties' estimate of the time necessary to file
the parties' estimate as to the probable length of
the dates mutually convenient for trial.
the parties' decision as to whether the action may
be referred to a United States magistrate judge for trial pursuant
to 28 U.S.C. § 636(c).
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
subsidiaries, affiliates, members and/or partners with which it is
This the 27th day of September, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?