Case 3:13-cv-00750-JGH Document 14 Filed 09/13/13 Page 1 of 7 PageID #: 190

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY CIVIL ACTION NO. 3:13-CV-750-JGH GREGORY BOURKE AND MICHAEL DELEON, ET AL

PLAINTIFFS

ELECTRONICALLY FILED
-VSDEFENDANTS ELAINE FILIATREAU NELSON COUNTY CLERK, MOTION TO DISMISS DEFENDANTS

STEVE BRESHEAR, GOVERNOR OF KENTUCKY, ET AL ***** ***** *****

Comes the Defendant, Elaine Filiatreau, Nelson County Clerk, pursuant to FRCP 12(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 samesex couples from marriage in Kentucky. Plaintiffs bring this action pursuant to 42 USCS 1983 requesting declaratory and injunctive relief that the Commonwealths prohibition of marriage for same-sex couples and its refusal to recognize marriages of same sex couples entered into outside of the Commonwealth violates the Due Process Clause and Equal Protection Clause of the Fourteenth 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 previously obtained 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 licenses in other states recognizing same-sex marriage. (Id.) It is not alleged that any of the Plaintiffs have had any interaction or connection with Elaine Filiatreau in her official capacity as Clerk of

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Nelson County in any way as it relates to the Commonwealths 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 the enforcement of the regulations surrounding said licenses. They allege further that she is responsible for preparing and approving the marriage license application and marriage license forms used in county offices across the Commonwealth. (Id.) Based on the assertions in Plaintiffs Complaint, Plaintiffs have failed to allege sufficient facts 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 have failed 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 thus retain sovereign immunity. Whittington v. Milby, 928 F.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 considered 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 in which the local government could be sued in its own name. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (U.S. 1978). However, Kentucky courts differentiate between county and municipal entities. LFUCG v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). Generally, Kentucky counties are entitled to the same sovereign immunity as the Commonwealth. Id., See also

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Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky. 2003). County immunity is not a creation of the courts like municipal immunity, so it may only be waived by the General Assembly. 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 actions he 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 the Plaintiffs have named Elaine Filiatreau in her official capacity, the suit is in fact a claim solely against 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 same immunities as the Commonwealth, Nelson County is effectively immune from suit for a claim arising 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 be acting 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 Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)). Therefore, in order to establish a violation of 1983, the Plaintiffs must show that Defendant Filiatreau deprived them

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of a constitutional right while acting under color of state law. Lane v. City of Lafollette, 490 F.3d 410, 418 (6th Cir. 2007). Summe v. Kenton County Clerk's Office, 604 F.3d 257, 264 (6th Cir. Ky. 2010). Plaintiff has failed to allege sufficient facts to support a claim under 42 USCS 1983 as Plaintiffs have failed to allege any conduct on behalf of Defendant Elaine Filiatreau, in her official capacity as Clerk of Nelson County, which deprived them of a constitutional right. Case law setting forth the general requirements to satisfy a cause of action under 42 USCS 1983 provides that an official will not be liable in a civil rights action unless he directly and personally participates in conduct under color of state law which deprives the plaintiff of rights, privileges, and immunities secured him by the Federal Constitution. Richardson v. Snow, 340 F. Supp. 1261 (D.Md.1972). Stated another way, plaintiff must show person acting under color of law committed alleged deprivation. Baltoski v. Pretorius, 291 F. Supp. 2d 807 (N.D. Ind. 2003) On the face of their Complaint, the Plaintiffs have not alleged any personal participation by Filiatreau, nor any other employee of the Nelson County Clerks office, that has deprived them of their alleged rights. It goes without saying in this case that, despite the Plaintiffs allegations, Elaine Filiatreau is not responsible for preparing and approving marriage licenses and applications across all the counties of the Commonwealth. Elaine Filiatreau, in her official capacity as Clerk of Nelson County, only oversees and facilitates marriage licenses within the boundary of Nelson County, Kentucky. Further, the only relation Nelson County has to this action is that two of the Plaintiffs happen to reside in Nelson County. These Plaintiffs, Meade and Barlowe, obtained a marriage license from the state of Iowa in 2009. While they recognize that the Nelson County Clerk is responsible for issuing marriage licenses, they have not alleged that they attempted to obtain a marriage license within Nelson County at any point in time. The

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Plaintiffs allege only that they are entitled to recognition of their marriage within the Commonwealth; however, they have failed to allege that the Nelson County Clerk acted in any such way to deny them this recognition, nor have the Plaintiffs set forth facts alleging that the Nelson County Clerk is responsible for recognizing out of state marriages. Furthermore, it is an essential element of a civil rights claim that the particular defendant be personally involved in the alleged denial of the constitutional right. Battle v. Lawson, 352 F. Supp. 156 (W.D.Okl.1972); Townes v. Swenson, 349 F. Supp. 1246 (W.D.Mo.1972); Campbell v. Anderson, 335 F. Supp. 483 (D.Del.1971). The Plaintiffs have alleged no personal involvement or direct action by Elaine Filiatreau or the Nelson County Clerks office in the Commonwealths failure to recognize an out of state marriage pursuant to KRS 402.040 and KRS 402.020. Any such claim could only be brought against the appropriate government entity or department responsible for the enactment of the laws complained of or a state or government actor denying them the right they allege they are entitled to. There are no facts to sustain that the Nelson County Clerk has acted in any way to deny any of the Plaintiffs of any rights. There is no allegation the Plaintiffs attempted to obtain a marriage license in Nelson County and there is no allegations on behalf of the Plaintiffs that Elaine Filiatreau or any employee of the Nelson County Clerks office has acted in any way to enforce Kentuckys laws on marriage that have either directly or indirectly deprived the Plaintiffs of their alleged right to marriage. In considering its motion, this Defendant recognizes that the court must "construe the plaintiff's complaint liberally, in plaintiff's favor, accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2007). However, the factual allegations must "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007). Stated another way, the

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plaintiff must provide "more than conclusions and an unsubstantiated recitation of the necessary elements of a claim." McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012). To assert a claim under 42 USCS 1983, there must be action on behalf of a defendant. As noted, 42 USCS 1983 creates liability by showing that defendant personally participated in deprivation of plaintiff's rights or caused such a deprivation to occur. Arnold v International Business Machines Corp, 637 F.2d 1350 (9th Cir. Cal. 1981). The Plaintiffs have failed to allege specific conduct taken on behalf of the Nelson County Clerk which deprived them of any constitutional rights. Without this, Plaintiffs cannot sustain a claim against this Defendant and have failed to state a claim upon which relief can be granted. WHEREFORE, based on the foregoing, assuming all facts alleged by Plaintiffs in their Complaint are true, Plaintiffs have failed to allege specific conduct on behalf of the Nelson County Clerk or any personal participation on behalf of Elaine Filiatreau, in her official capacity as Nelson County Clerk, which would support a claim by which they are entitled to relief. Therefore, Defendant Elaine Filiatreau in her official capacity as Nelson County Clerk requests entry of a Judgment in her favor. Respectfully submitted, WARD, HOCKER & THORNTON, PLLC 333 W. Vine Street, Suite 1100 Lexington, Kentucky 40507 Telephone: (859) 422-6000 Facsimile: (859) 422-6001 Email: mlyons@whtlaw.com BY: /s/ Licha H. Farah, Jr. LICHA H. FARAH, JR. Counsel for Defendant, Elaine Filiatreau, Nelson County Clerk

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served via electronic filing upon the following: Dawn Elliott Shannon Fauver 1752 Frankfort Ave. Louisville, Kentucky 40206 Counsel for Plaintiffs All on this the 13th day of September, 2013. /s/ Licha H. Farah, Jr. LICHA H. FARAH, JR. CL5135

Case 3:13-cv-00750-JGH Document 14-1 Filed 09/13/13 Page 1 of 2 PageID #: 197

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY CIVIL ACTION NO. 3:13-CV-750-JGH GREGORY BOURKE AND MICHAEL DELEON, ET AL

PLAINTIFFS

ELECTRONICALLY FILED
-VSDEFENDANTS ELAINE FILIATREAU NELSON COUNTY CLERK, MOTION TO DISMISS DEFENDANTS

STEVE BRESHEAR, GOVERNOR OF KENTUCKY, ET AL ***** ***** *****

Upon Defendants, Elaine Filiatreau Nelson County Clerk, Motion to Dismiss, the Court having considering the Defendants Motion and the record, it is hereby Ordered and Adjudged that the Plaintiffs Complaint is DISMISSED with prejudice and Judgment will be entered in favor of Defendant Elaine Filiatreau Nelson County Clerk. Entered this the _____ day of ____________________, 2013. _________________________________ JUDGE WESTERN DISTRICT COURT LOUISVILLE DIVISION

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CERTIFICATE OF SERVICE I, Clerk of the Western District Court, hereby certify that a true and accurate copy of the foregoing has been served upon all parties of record as set out below. __________________________________ CLERK Date: ____________/_________/_______

Licha H. Farah, Jr. WARD, HOCKER & THORNTON, PLLC 333 W. Vine Street, Suite 1100 Lexington, Kentucky 40507 Counsel for Defendant, Elaine Filiatreau, Nelson County Clerk Dawn Elliott Shannon Fauver 1752 Frankfort Ave. Louisville, Kentucky 40206 Counsel for Plaintiffs
CL5135