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3:13-cv-00750 #14

3:13-cv-00750 #14

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Published by Equality Case Files
Doc 14 - Nelson County Clerk Elain Filiatreau's Motion to Dismiss
Doc 14 - Nelson County Clerk Elain Filiatreau's Motion to Dismiss

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Categories:Types, Business/Law
Published by: Equality Case Files on Sep 13, 2013
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09/22/2013

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UNITED STATES DISTRICT COURTFOR THEWESTERN DISTRICT OF KENTUCKYCIVIL ACTION NO. 3:13-CV-750-JGHGREGORY BOURKEANDMICHAEL DELEON, ET AL PLAINTIFFS-VS-
ELECTRONICALLY FILED 
DEFENDANT’S ELAINE F
ILIATREAUNELSON COUNTY CLERK, MOTION TO DISMISS
STEVE BRESHEAR, GOVERNOR OF KENTUCKY, ET AL DEFENDANTS***** ***** *****Comes the Defendant, Elaine Filiatreau, Nelson County Clerk, pursuant to FRCP12(b)(1) and FRCP 12(b)(6), and for her Motion to Dismiss states as follows:Plaintiffs
Complaint challenges the constitutionality of Kentucky laws excluding same-sex couples from marriage in Kentucky. Plaintiffs bring this action pursuant to 42 USCS 1983
requesting declaratory and injunctive relief that the Commonwealth’s
 prohibition of marriage for same-sex couples and its refusal to recognize marriages of same sex couples entered into outsideof the Commonwealth violates the Due Process Clause and Equal Protection Clause of theFourteenth Amendment to the United States Constitution. (See Plaintiffs Complaint, Doc. #1).The only Plaintiffs with any connection to Nelson County are Jimmy Meade and Luther Barlowe, who are identified as residents of Nelson County. It is asserted that the two previouslyobtained a marriage license in Iowa in July 2009, where their marriage is recognized. The other Plaintiffs are identified as residents of Jefferson County, all of which obtained marriage licensesin other states recognizing same-sex marriage. (
 Id 
.) It is not alleged that any of the Plaintiffshave had any interaction or connection with Elaine Filiatreau in her official capacity as Clerk of 
Case 3:13-cv-00750-JGH Document 14 Filed 09/13/13 Page 1 of 7 PageID #: 190
 
2
 Nelson County in any way as it relates to the Commonwealth’s recognition of their out of state
marriage license. The Plaintiffs however have stated in their Complaint that Elaine Filiatreau is being sued in her official capacity as she oversees the issuing of marriage licenses and theenforcement of the regulations surrounding said licenses. They allege further that she isresponsible for preparing and approving the marriage license application and marriage licenseforms used in county offices across the Commonwealth. (
 Id 
.)Based on the assertions in Plaintiffs
Complaint, Plaintiffs have failed to allege sufficientfacts to support a claim against Defendant Elaine Filiatreau, in her official capacity as Clerk of  Nelson County, as Nelson County is entitled to sovereign immunity, and the Plaintiffs havefailed to allege any action on behalf of the Elaine Filiatreau, in her official capacity as Clerk of  Nelson County, depriving them of a constitutionally protected right.
I.
 
PLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF
SOVEREIGN IMMUNITY
In the context of federal claims pursuant to 42 U.S.C. 1983, states are excluded from the
statutory definition of “persons” and thu
s retain sovereign immunity.
Whittington v. Milby
, 928F.2d 188, 193-94 (6th Cir. 1991) (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
Subdivisions of states, such as municipal corporations and “similar governmental entities,”
however, are considere
d “persons” subject to liability under § 1983.
 Howlett v. Rose
, 496 U.S.356, 376 (1990). The decision that local governments may be sued under § 1983 indicates that
suits against individuals in their official capacity are “persons” only in those § 1983
cases inwhich the local government could be sued in its own name.
 Monell v. Dep't of Soc. Servs.
, 436U.S. 658, 690 (U.S. 1978). However, Kentucky courts differentiate between county andmunicipal entities.
 LFUCG v. Smolcic
, 142 S.W.3d 128, 132 (Ky. 2004). Generally, Kentuckycounties are entitled to the same sovereign immunity as the Commonwealth.
 Id 
., See also
Case 3:13-cv-00750-JGH Document 14 Filed 09/13/13 Page 2 of 7 PageID #: 191
 
3
Schwindel v. Meade County
, 113 S.W.3d 159, 163 (Ky. 2003). County immunity is not acreation of the courts like municipal immunity, so it may only be waived by the GeneralAssembly.
Smolcic
, 142 S.W.3d at 132 (citing
 Monroe County v. Rouse
, 274 S.W.2d 477, 478(Ky. 1954)).The Plaintiffs in this case have sued the Nelson County Clerk in her official capacity,which is the equivalent of suing the clerk's employer, the county. Case law provides that while personal-capacity suits seek to impose personal liability upon a government official for actionshe takes under color of state law, individuals sued in their official capacities stand in the shoes of the entity they represent.
 Alkire v. Irving 
, 330 F.3d 802, 810 (6th Cir. 2003, (quoting
 Kentucky v.Graham
, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985))). Therefore, although thePlaintiffs have named Elaine Filiatreau in her official capacity, the suit is in fact a claim solelyagainst Nelson County. As noted above, under Kentucky law, counties are entitled to the same
sovereign immunity as the Commonwealth. As states are not identified as “persons” for purposes
of 42 U.S.C.S 1983, and Kentucky law recognizes that counties are afforded the sameimmunities as the Commonwealth, Nelson County is effectively immune from suit for a claimarising under 42 U.S.C.S. 1983. Therefore, based on the doctrine of sovereign immunity,Plaintiffs claims fail as a matter of law.
II.
 
PLAINTIFFS’ COMPLAINT FAILS TO ALLEGE ACTION ON BEHALF
OF THE DEFENDANT ELAINE FILIATREAU
A prima facie case under 42 USCS § 1983 has two elements: "(1) the defendant must beacting under the color of state law, and (2) the offending conduct must deprive the plaintiff of rights secured by federal law."
 Bloch v. Ribar 
, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parrattv. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)). Therefore, in order toestablish a violation of § 1983, the Plaintiffs must show that Defendant Filiatreau deprived them
Case 3:13-cv-00750-JGH Document 14 Filed 09/13/13 Page 3 of 7 PageID #: 192

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