Martin v. U.S. Department of Transportation et al

Filing 37

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 7/25/2017 - Defendant USDOT's Motion to Dismiss (DN 23) is GRANTED; Defendant KYTC's Motion to Dismiss (DN 28) is GRANTED; Plaintiff's Motions for Summary Judgment (DN 24, 33, 34) are DENIED AS MOOT; and Defendant's Motion to Strike Plaintiff's Motions for Summary Judgment (DN 35) is DENIED AS MOOT. cc: Counsel, Plaintiff-pro se(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00124-GNS-HBB

PEPPY MARTIN

PLAINTIFF

V.

U.S. DEPARTMENT OF TRANSPORTATION; and
KENTUCKY TRANSPORTATION CABINET

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant U.S. Department of Transportation’s
Motion to Dismiss (DN 23), Defendant Kentucky Transportation Cabinet’s Motion to Dismiss
(DN 28), Plaintiff’s Motions for Summary Judgment (DN 24, 33, 34), and Defendant U.S.
Department of Transportation’s Motion to Strike Plaintiff’s Motions for Summary Judgment
(DN 35).

For the following reasons, Defendants’ Motions to Dismiss are GRANTED,

Defendant’s Motion to Strike is DENIED AS MOOT, and Plaintiff’s Motions for Summary
Judgment are DENIED AS MOOT.
I.

BACKGROUND

Plaintiff Peppy Martin (“Martin”), appearing pro se, brings this action against the U.S.
Department of Transportation (“USDOT”) and Kentucky Transportation Cabinet (“KYTC”) for
alleged damages incurred as a result of the design and construction of the I-65 widening project
that occurred adjacent to Martin’s property. (See Compl., DN 1-2). Martin alleges that the
project has damaged her “health, wealth, and welfare . . . loss of privacy, and loss of future

1

income” and seeks $100 million in damages. (Compl. 13). USDOT and KYTC have moved to
dismiss the Complaint arguing that this Court lacks subject matter jurisdiction and that the
Complaint fails to state a claim. (Def.’s Mot. Dismiss, DN 23; Def.’s Mot. Dismiss, DN 28).
USDOT has also moved to strike Martin’s Motion for Summary Judgment from the record.
(Def.’s Mot. Strike, DN 35). These matters are ripe for adjudication.
II.
A.

DISCUSSION

USDOT’s Motion to Dismiss

USDOT moves pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss all claims
against it. (See Def.’s Mem. Supp. Mot. Dismiss 2-9, DN 23-1 [hereinafter USDOT’s Mot.]). In
order to survive a motion to dismiss alleging a lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1), the plaintiff bears the burden of proving subject matter jurisdiction. See Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The Court must “construe the Complaint liberally
and treat all well-pleaded facts as true, according the plaintiff the benefit of all reasonable
inferences.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (citation omitted). “‘It is
axiomatic that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.’” Munaco v. United States, 522 F.3d 651, 652 (6th Cir.
2008) (internal quotation marks omitted) (quoting United States v. Mitchell, 463 U.S. 206, 212
(1983)).
The sovereign immunity of the United States extends to federal agencies and federal
officers in their official capacities. Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th
Cir. 2013). Without a “clear relinquishment” of sovereign immunity, a court has no jurisdiction
overt tort actions against the United States. Dalehite v. United States, 346 U.S. 15, 31 (1953).
Among the limited waivers of the government’s sovereign immunity is the Federal Tort Claims

2

Act (“FTCA”), which provides a remedy against the United States for the torts of its officers and
employees.

United States v. Orleans, 425 U.S. 807, 813 (1976).

The FTCA waives the

government’s sovereign immunity for claims brought against it “for injury or loss of property, or
personal injury or death by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment . . . .” 28 U.S.C. §
1346(b)(1).
Martin’s alleged various state tort claims may not be maintained against USDOT. Aside
from the fact that Martin has neither brought her state tort claims under the FTCA nor named the
United States as a defendant, an actionable FTCA claim must be for injury caused by the
negligent or wrongful conduct of a federal employee. FDIC v. Meyer, 510 U.S. 471, 477 (1994).
The alleged negligent conduct of which Martin complains, however, was committed by
employees either of the state or contracted by the state during the I-65 construction project. (See
Compl.). The only link Martin alleges between the USDOT and the latter entities is that USDOT
provides federal funds to those entities, and thus should have provided more oversight. (Pl.’s
Resp. Def.’s Mot. Dismiss 1-2, DN 26 [hereinafter Pl.’s Resp. USDOT’s Mot.]). But “the
existence of federal funding, standing alone, does not establish an individual’s status as a federal
employee and hence the government’s liability under the [FTCA] . . . .” Haugen v. United
States, 492 F. Supp. 398, 401 (E.D.N.Y. 1980), aff’d, 646 F.2d 560 (2d Cir. 1980) (citations
omitted); see Orleans, 425 U.S. at 813 (“The Tort Claims Act was never intended, and has not
been construed by this Court, to reach employees or agents of all federally funded programs that
confer benefits on people.”). Because Martin has alleged no more than a funding relationship
between the USDOT and the state employees whose conduct she challenges, she could not have

3

stated a valid FTCA claim against the USDOT even if she had brought one. Accordingly, the
Court concludes that USDOT is immune from suit.1
Turning to USDOT’s argument that the claims asserted against it should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6), a complaint is subject to dismissal if it “fail[s] to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a motion
to dismiss under Rule 12(b)(6), the Court must construe the complaint in a light most favorable
to the nonmoving party, accepting “as true all factual allegations and permissible inferences
therein. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994) (citing Westlake v. Lucas,
537 F.2d 857, 858 (6th Cir. 1976)). The nonmoving party, however, must plead more than bare
legal conclusions. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996). In order
to survive a Rule 12(b)(6) motion, “[the] complaint must contain (1) ‘enough facts to state a
claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action’s
elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’” Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). While the pleadings do not need to contain detailed factual
allegations, the nonmoving party must allege facts that when “accepted as true . . . ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
USDOT contends that although the Complaint names USDOT as a defendant, she makes
no mention of any legal wrongdoing specifically by USDOT. (USDOT’s Mot. 4-5). Her
allegations involving both Defendants include the following:

1

Although not argued by Martin, the Court finds it important to note that USDOT did not waive
the defense of sovereign immunity by removing to this Court. See Bakus v. Bakus, No. 3:14-CV00981-CRS, 2015 WL 5031976, at *4 (W.D. Ky. Aug. 25, 2015) (holding that “[t]he defense of
sovereign immunity survived the [federal agencies] removal, because ‘[t]he United States cannot
be sued at all without the consent of Congress.’” (quoting Muniz-Muniz, 741 F.3d at 671)).
4



“Defendants have, without her knowledge or express permission, effectively
obviated her visibility on I-65 by creating a huge and expensive setback, some 15
feet thick and 50 feet deep.” (Compl. 10).



“[t]he 3 Defendants have made a sheer mess not only of Plaintiff’s frontage which
has value for its visibility but also of the medians at the Bonnieville exit,
particularly on the northbound side.” (Compl. 11).



“Her land has been defaced, and its commercial development is hurt by the lack
of vision of Defendants.” (Compl. 12).

These allegations simply do not state a cognizable cause of action directly attributable to
USDOT. In her response to USDOT’s motion to dismiss, Martin expounds on her claims against
USDOT. Usually, new factual allegations made in a parties’ filings may not be considered in
resolution of a 12(b)(6) motion. See Gundlach v. Reinstein, 924 F. Supp. 684, 688 n.4 (E.D. Pa.
1996) (refusing to consider allegation that was not in complaint but appeared for the first time in
plaintiff’s legal memoranda regarding his Rule 12(b)(6) motion).

The Court, however, is

cognizant of Martin’s status as a pro se litigant. Regardless, even if the Court considers Martin’s
specified allegations, she still does not state a cognizable claim upon which relief can be granted.
In her response, Martin maintains that the USDOT is the owner of the real estate from
which damage has occurred and that the USDOT should have more closely supervised the
project due to the State’s “penchant for graft, closet deals, [c]orruption resulting in disregard for
quality.” (Pl.’s Resp. USDOT’s Mot. 1). She further states that the USDOT should have sent in
federal inspectors from other states and that the USDOT failed to remind Kentucky officials that
funding for engineering and economic surveys is available. (Pl.’s Resp. USDOT’s Mot. 1-2). In
order to survive a Rule 12(b)(6) motion, the complaint must recite “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp., 550 U.S. at 570. Even construing Martin’s
allegations in the light most favorable to her, the Court holds that she has not stated a plausible
claim for relief. Accordingly, the Court will dismiss Martin’s claims asserted against USDOT.
5

B.

KYTC’s Motion to Dismiss

KYTC argues that it is immune to suit under the doctrine of sovereign immunity and
moves to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1). (Def.’s Mem. Supp. Mot.
Dismiss 3, DN 28-1 [hereinafter KYTC’s Mot.]). The Eleventh Amendment to the United States
Constitution provides that “[t]he Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend.
XI.

The Supreme Court has also “made clear that the sovereign immunity of the

states . . . extends to actions brought against a state by its own citizens.” Dixon v. Clem, 492
F.3d 665, 674 (6th Cir. 2007) (quoting S.J. v. Hamilton Cty., 374 F.3d 416, 419 (6th Cir. 2004).
The Sixth Circuit has explained that “[a] state is sovereign within the structure of the federal
system, and ‘it is inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent.’” Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002) (quoting
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). Moreover, “[s]overeign immunity
applies not only to the states themselves, but also to ‘state instrumentalities,’” and regardless of
the relief sought. S.J. v. Hamilton Cty., 374 F.3d 416, 419 (6th Cir. 2004) (quoting Regents of
Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997)); P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993).
It is clear that KYTC is an arm of the state for the purposes of sovereign immunity.
Wilder v. Hall, 501 F. Supp. 2d 887, 897 (E.D. Ky. 2007) (citing Chaz Constr. LLC v. Codell,
137 F. App’x 735, 745 (6th Cir. 2005); Gritton v. Disponett, No. 05-75, 2006 WL 2587778, at *2
(E.D. Ky. Sept. 6, 2006); Commonwealth, Transp. Cabinet v. Hall, No. 2005-CA-000862-MR,
2006 WL 3456617, at *3 (Ky. App. Dec. 1, 2006)). See also KRS 12.250 (establishing the

6

KYTC within Kentucky’s government); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 152 n.2 (6th
Cir. 1995) (holding that Eleventh Amendment barred claims against KYTC). Therefore, this
Court agrees the Eleventh Amendment bars this lawsuit against KYTC unless an exception to
sovereign immunity is established. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S.
468, 480 (1987).
There are three exceptions to a state’s sovereign immunity. The first exception is when
the state consents to suit. Alden v. Maine, 527 U.S. 706, 755 (1999). Kentucky has not
consented to suit with respect to the claims asserted against KYTC in this forum.2 The second
exception is when Congress has abrogated a state’s sovereign immunity by statute. Seminole
Tribe of Fla., 517 U.S. at 54. No statute exists that would waive immunity in the present action.
Finally, the third exception is when a litigant seeks injunctive or prospective relief from a state
officer in order to prevent future constitutional violations. Ex Parte Young, 209 U.S. 123, 15960 (1908). That is not the case here as Martin seeks monetary relief in the amount of $100
million dollars but has requested no injunctive relief. (Compl. 13).
The Court holds that KYTC, as an agency of the Commonwealth, is immune from suit
under the Eleventh Amendment. Accordingly, KYTC’s motion to dismiss will be granted.
C.

Plaintiff’s Motions for Summary Judgment and Defendant’s Motion to
Strike

As the Court determined above that Martin’s claims against USDOT and KYTC will be
dismissed, Martin’s Motions for Summary Judgment will be denied as moot. Additionally,
USDOT’s Motion to Strike will be denied as moot.

2

Martin’s claims against KYTC may fall within the Kentucky’s limited waiver of sovereign
immunity as set forth in KRS 49.010-49.180, which provides a procedural forum in the
Kentucky Claims Commission for negligence claims against the Commonwealth of Kentucky.
7

III.

CONCLUSION

For the reasons discussed above, IT IS HEREBY ORDERED:
1.

Defendant USDOT’s Motion to Dismiss (DN 23) is GRANTED;

2.

Defendant KYTC’s Motion to Dismiss (DN 28) is GRANTED;

3.

Plaintiff’s Motions for Summary Judgment (DN 24, 33, 34) are DENIED AS

MOOT; and
4.

Defendant’s Motion to Strike Plaintiff’s Motions for Summary Judgment (DN 35)

is DENIED AS MOOT.

Greg N. Stivers, Judge
United States District Court
July 25, 2017

cc:

counsel of record
Plaintiff, pro se

8