Herran Properties, LLC v. Lyon County Fiscal Court et al

Filing 37

MEMORANDUM OPINION AND ORDER signed by Senior Judge Thomas B. Russell on 5/14/18; granting 27 Motion to Dismiss for Failure to State a Claim: All claims against KSP are hereby dismissed and the Clerk is directed to REMOVE KSP as a Defendant in this case. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-CV-00107
HERRAN PROPERTIES, LLC,

PLAINTIFF

v.
LYON COUNTY FISCAL COURT, et al.,

DEFENDANTS

Memorandum Opinion & Order
This matter comes before the Court on Motion by Defendant Commonwealth of
Kentucky, Department of Kentucky State Police, (“KSP”), to dismiss the claims brought against
it by Plaintiff Herran Properties, LLC, (“Plaintiff”). [DN 27.] Plaintiff has responded, [DN 33],
and KSP has replied. [DN 35.] This matter is ripe for adjudication and, for the reasons that
follow, IT IS HEREBY ORDERED that KSP’s Motion, [DN 27], is GRANTED.
A. Background
Plaintiff is a Kentucky Limited Liability Company located in Kentucky. [DN 23, at 2.]
On June 30, 2017, it instituted this lawsuit, suing the following Defendants: the Lyon County
(Kentucky) Fiscal Court, the Lyon County Attorney, the Lyon County Property Valuation
Administrator (PVA), the Lyon County Coroner, KSP, and KSP Trooper Eric Fields. [See DN
1.] The case arises out of Plaintiff’s purchase of a “7.3 acre tract of commercially zoned real
estate, located in Lyon County, Kentucky….” [DN 23, at 4.] Plaintiff’s stated purpose for buying
the land was to develop it commercially. [Id.] “Prior to and immediately after the Plaintiff’s
purchase of the subject property, adjacent property owners contacted the managing member and
owner of the Plaintiff, Wesley Herran, advising [him] of the” supposed “existence of a one
hundred fifty (150) year old abandoned cemetery” on the recently-purchased property. [Id.]

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According to Plaintiff, in its deed, as well as “the deeds in the Plaintiff’s chain of title,” there is
“no reference, mention or suggestion of any cemetery,” nor are there any “physical markers,
headstones, monuments, fences, or other visible indications of any cemetery or burial site located
upon the Plaintiff’s property.” [Id.]
Plaintiff commenced the commercial development of the property, at which time he was
ordered to cease and desist, apparently due to the possible existence of the abandoned cemetery
on the property. [Id. at 5.] “Plaintiff subsequently discovered that on or after March 21, 2017, the
Lyon County PVA, Christie Cruce, Lyon County [Coroner], Ronnie Patton, and KSP Trooper
Eric Fields, along with other persons…entered the Plaintiff’s real estate for the purpose of
‘witching’1 and/or searching for skeletal remains, headstones, or other evidence of a cemetery or
burial ground.” [Id.] Thereafter, the Lyon County Attorney sought and was granted “a temporary
injunction to prevent the Plaintiff from developing the property for a period of no less than sixty
(60) days.” [Id.] According to Plaintiff, because of the injunction it was “unable to develop its
real estate during the prime construction months of 2017, and has incurred substantial damage to
its property rights without due process or compensation.” [Id. at 6.]
KSP filed the instant motion to dismiss all claims against it on the basis of Eleventh
Amendment sovereign immunity. [DN 27.] Plaintiff has laid out claims against KSP for unlawful
search and seizure under the Fourth Amendment and 42 U.S.C. § 1983, arguing that Trooper
Fields, along with others, entered Plaintiff’s property without any legal right to do so, thereby
violating Plaintiff’s constitutional rights. [DN 23, at 7-8.] Moreover, Plaintiff claims that KSP
“failed to adequately train and instruct…Trooper Eric Fields…on how to lawfully conduct a
search in accordance with the rights and protections afforded to the Plaintiff by the 4th

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Plaintiff describes the act of “witching” as “consisting of holding a Y-shaped stick outward from ones person” and,
apparently, scanning the ground for signs of skeletal remains. [DN 23, at 5.]

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Amendment and 14th Amendment of the Constitution of the United States.” [Id. at 12.] KSP
argues that these claims are barred by the Eleventh Amendment and, accordingly, must be
dismissed. The merits of these arguments are discussed below.
B. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), every plaintiff’s complaint must include
“a short and plain statement of the claim showing that the pleader is entitled to relief.” “Rule
12(b)(6) provides that a complaint may be dismissed for failure to state a claim upon which relief
can be granted.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). “When considering a motion
to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court
must accept all of the allegations in the complaint as true, and construe the complaint liberally in
favor of the plaintiff.” Lawrence v. Chancery Court of Tennessee, 188 F.3d 687, 691 (6th Cir.
1999). In other words, “unless it can be established beyond a doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief,” the motion should be
denied. Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir. 1989). “However, the Court need not
accept as true legal conclusions or unwarranted factual inferences.” Blakely v. United States, 276
F.3d 853, 863 (6th Cir. 2002). A “complaint must contain either direct or inferential allegations
respecting all the material elements to sustain a recovery under some viable legal theory.”
Andrews v. Ohio, 104 F.3d 803, 806 (6th Cir. 1997).
Further, even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore,
the plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative

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level on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. The concept of “plausibility” indicates that a complaint should contain sufficient facts
“to state a claim to relief that is plausible on its face.” Id. at 570. The plausibility element is
satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Conversely, where the court cannot “infer more than the mere possibility of
misconduct, the complaint has alleged—but has not show[n]—that the pleader is entitled to
relief.” Id. at 679 (internal quotation marks omitted).
C. Discussion
In the instant Motion, KSP has moved for the dismissal of all claims brought by Plaintiff
against it, arguing that it is entitled to sovereign immunity and, consequently, Plaintiff’s suit
against it is barred.
1. Eleventh Amendment Immunity Standard
The Eleventh Amendment 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. And “[a]lthough by its terms the Amendment applies only to suits
against a State by citizens of another State,…[courts] have extended the Amendment’s
applicability to suits by citizens against their own States.” Bd. of Trustees of Univ. of Alabama v.
Garrett, 531 U.S. 356, 363 (2001) (citations omitted). As the Supreme Court has explained,
“[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be
sued by private individuals in federal court.” Id. (citations omitted). Likewise, it is “well settled
that the Eleventh Amendment bars federal court actions against the agencies and departments of

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the state, as well as the state itself.” Scott v. Michigan, 173 F. Supp. 2d 708, 713 (E.D. Mich.
2001) (internal quotation marks and citations omitted). Relatedly, the Amendment bars “claims
brought against state employees in their official capacity because ‘a suit against a state officer in
his or her official capacity is tantamount to a suit against the state itself.’” Id. (quoting Haddad v.
Fromson, 154 F. Supp. 2d 1085, 1091 (W.D. Mich. 2001)). “This jurisdictional bar applies
regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933)).
“There are three exceptions to a State’s sovereign immunity,” which are: “(a) when the
State has consented to suit; (b) when the exception first set forth in Ex parte Young, 209 U.S. 123
(1908), applies; and (c) when Congress has properly abrogated a State’s immunity.” S & M
Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (citing Kovacevich v. Kent State Univ.,
224 F.3d 806, 817 (6th Cir. 2000)).
2. Analysis
In the instant Motion, KSP argues that it is entitled to sovereign immunity under the
Eleventh Amendment and, because (1) it has not consented to being sued, (2) the Ex parte Young
exception does not apply, and (3) its immunity has not been abrogated by Congress, the claims
asserted by Plaintiff against it must be dismissed. [See DN 27, at 4-5.] Conversely, Plaintiff in its
Response argues that “[t]he Eleventh Amendment…should not be allowed to shield the
Defendant [KSP] for their failure to adequately train and supervise KSP Detective Eric Fields,”
and that KSP’s “failure to adequately train…Fields allowed him to either knowingly or
unknowingly enter into a conspiracy with Lyon County, Kentucky, public officials to deprive the
Plaintiff of [its] constitutional rights.” [DN 33-1, at 5.]

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In the first instance, it is helpful to clarify that KSP has not consented to being sued in
this case, [DN 35, at 2], something with which Plaintiff has agreed. [DN 33-1, at 4.] Second,
there have been no allegations made that Congress has in any way abrogated any sovereign
immunity that may apply here. Thus, the two principal questions this Court must resolve are (1)
whether KSP is entitled to sovereign immunity and, relatedly, (2) whether the Ex parte Young
exception applies.
KSP is entitled to sovereign immunity. Recently, in 2015, the District Court for the
Eastern District of Kentucky faced the same issue, and held that Eleventh Amendment sovereign
immunity extended to KSP. See Baughman v. Brooks, No. 5:15-cv-29, 2015 WL 3916150, at *2
(E.D. Ky. Jun. 25, 2015) (dismissing all federal claims against KSP after holding that KSP was
entitled to the protections afforded by the Eleventh Amendment). The district court’s analysis in
that case was sound and, accordingly, Plaintiff’s constitutional claims (Counts II and VI of the
Amended Complaint) shall be dismissed here.
There is the additional question of Plaintiff’s allegations that KSP failed to adequately
train Trooper Fields. [See DN 23, at 12.] Although subsumed in Count VI, which is titled
“unlawful search and seizure – 4th Amendment and 42 U.S.C. § 1983,” Plaintiff makes
allegations that could conceivably be construed as a common law claim for failure to train.
Therefore, in the interest of completeness, the Court will also address this issue. Baughman
provides guidance on the question of any common law claim Plaintiff may have stated against
KSP:
The Kentucky State Police are also entitled to immunity on Plaintiff’s state law
claims. Under Kentucky law, ‘[a] state agency is entitled to immunity from tort
liability to the extent that it is performing a governmental as opposed to a
proprietary function.’ Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (noting
that governmental immunity and sovereign immunity are used interchangeably by
Kentucky courts). The Kentucky State Police is tasked with enforcement of the
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law, a governmental function, and is, thus, entitled to immunity. See Gaither v.
Justice & Pub. Safety Cabinet, 447 S.W.3d 628, 633 (Ky. 2014); see also Allen v.
Booth, No. CIV.A. 08-135, 2008 WL 4829875, at *2 (E.D. Ky. Nov. 5, 2008).
Baughman, 2015 WL 3916150, at *2. Thus, to the extent that Plaintiff has herein made a claim
for failure to train under Kentucky common law, this claim, too, must be dismissed on the basis
of sovereign immunity.
The second question for this Court’s consideration is whether, notwithstanding the fact
that KSP is entitled to sovereign immunity, the Ex parte Young exception applies, thereby
preventing the dismissal of Plaintiff’s claims against KSP. “Under the Ex parte Young exception,
a federal court can issue prospective injunctive and declaratory relief compelling a state official
to comply with federal law…, regardless of whether compliance might have an ancillary effect
on the state treasury.” S & M Brands, 527 F.3d at 507 (citations omitted). Stated differently, the
Ex parte Young exception “allow[s] federal courts to enjoin state officers in their official
capacity from prospectively violating a federal statute or the Constitution.” Michigan Corr. Org.
v. Michigan Dept. of Corr., 774 F.3d 895, 904 (6th Cir. 2014) (citations omitted). “The exception
rests on the theory that, at least for purposes of prospective relief, a state official who violates
federal law is ‘stripped of his official or representative character.’” Id. (quoting Virginia Office
for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 (2011)). Crucially though, “[i]n order to fall
within the…exception, a claim must seek prospective relief to end a continuing violation of
federal law.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015) (internal
citations omitted) (emphasis added).
In its Response to the instant Motion, Plaintiff identifies the Ex parte Young exception,
and argues that it “has alleged sufficient allegations and supporting evidence to show ‘…a
plausible inference of wrongdoing.’” [DN 33, at 6 (quoting 16630 Southfield Ltd. P’ship v.

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Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).] However, in arguing that the Ex parte
Young exception applies, Plaintiff fails to take into account the fact that KSP is not a state
official. See Kentucky Mist Moonshine, Inc. v. Univ. of Kentucky, 192 F. Supp. 3d 772, 784 (E.D.
Ky. 2016) (explaining that “Ex parte Young applies only to state officials” and so the exception
did not apply plaintiff’s claim against the University of Kentucky.). Rather, KSP is properly
categorized as “an ‘arm’ of the ‘state’ for purposes of Eleventh Amendment immunity.” See id.
at 780 (citing Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. 1993)). Thus, the Ex parte Young
exception does not apply, KSP’s immunity protections remain intact and, consequently,
Plaintiff’s claims against it are barred by the Eleventh Amendment and must be dismissed.
D. Conclusion
For the reasons stated in this Memorandum Opinion, and the Court being otherwise
sufficiently advised, IT IS HEREBY ORDERED that KSP’s Motion, [DN 27], is GRANTED.
All claims against KSP are hereby dismissed and the Clerk is directed to REMOVE KSP
as a Defendant in this case.2
IT IS SO ORDERED.

May 14, 2018

cc:

2

Counsel of Record.

KSP is listed in the Record as “Commonwealth of Kentucky doing business as Kentucky State Police.”

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