MEMORANDUM IN SUPPORT OF MOTION TO …big.assets.huffingtonpost.com/mcswain.pdfPennzoil Co. v. Texaco, Inc., ... MEMORANDUM IN SUPPORT OF MOTION TO DISMISS ... unofficial transcript

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE

CASE NO. 7:15-cv-00021-ART-EBA STEPHANIE WATSON PLAINTIFF v. COMMONWEALTH OF KENTUCKY, et al.

DEFENDANTS

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

Respectfully submitted, /s/ Douglas L. McSwain Douglas L. McSwain [email protected] Sharon Gold [email protected] Courtney R. Samford [email protected] WYATT, TARRANT & COMBS, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507-1746 859.233.2012 Counsel for Defendants

Case: 7:15-cv-00021-ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 1 of 35 - Page ID#: 39

mailto:[email protected]



TABLE OF CONTENTS

I. BACKGROUND ..............................................................................................................1 II. STANDARD OF REVIEW ............................................................................................12 III. ANALYSIS .....................................................................................................................13

A. Eleventh Amendment Immunity Bars Many of Plaintiff’s Claims ....................14

B. Abstention is Proper Pursuant to Younger and its Progeny, Requiring Dismissal of the Remainder of Plaintiff’s Complaint .........................................18

1. The judicial proceeding that is the subject of Plaintiff’s Complaint is ongoing in state court ........................................................19 2. The state court proceeding against Plaintiff implicates important state interests ..........................................................................19 3. Plaintiff has adequate opportunities to raise any constitutional challenges that exist within the state court proceedings .........................20

C. Rooker-Feldman Doctrine Bars Review of any Final Order of the Floyd District Court Regarding the Terms and Conditions of Plaintiff’s Pretrial Release ................................................................................................................23

IV. PLAINTIFF’S CLAIMS ARE NOT RIPE .....................................................................25 V. PLAINTIFF’S COMPLAINT SEEKS INJUNCTIVE RELIEF THAT IS NOW MOOT 28 VI. CONCLUSION ...............................................................................................................29

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TABLE OF AUTHORITIES

CASES: Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) .................................................... 25-26

Am. Family Prepaid Legal Corp. v. Columbus Bar Assoc., 498 F.3d 328, 334 (6th Cir. 2007) ......................................................................................................................20

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) .........................................13

Armstrong, et al. v. Exceptional Child Center, Inc., et al, __U.S.__, Slip Op. No. 14-15 16

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ..................................................................8, 12

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ......................................17

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) .....................................................12

Bigelow v. Michigan Dep't of Natural Res., 970 F.2d 154, 157 (6th Cir. 1992) ...............26

Bleid Sports, LLC v. Nat'l Collegiate Athletic Ass'n, 976 F. Supp. 2d 911, 914 (E.D. Ky. 2013) ......................................................................................................................15

Brown v. Univers. of Ky. Comprehensive Assessment & Training Servs., 12-CV-123-KSF, 2013 WL 990423, *9 at n.3 (E.D. Ky. Mar. 13, 2013).................................14

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) ..........................................................13

Cf. Wishnefsky v. Addy, 969 F. Supp. 953 (1997) ..............................................................24

Church of Scientology v. U.S., 506 U.S. 9, 12 (1992)) ......................................................28

Collins v. Acree, Civil Action No. 12-CV-357-KSF, 2013 WL 19932 81, at *1-5 (E.D. Ky. May 13, 2013) .................................................................................................25

Dealer Computer Servs., Inc. v. Dub Herring Ford, 547 F.3d 558, 561 (6th Cir. 2008)..26

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ........................23

Ex Parte Farley, 570 S.W.2d. 617, 620 (Ky. 1978) ..........................................................14

Ex parte Young, 209 U.S. 123 (1908) ............................................................................9, 15

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84, (2005) ..............23

Faller v. Harris, No. CIV.A.1:06CV-00118-J, 2007 WL 2461706, at *5 (W.D. Ky. Aug. 23, 2007) ................................................................................................................20

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Fieger v. Cox, 524 F.3d 770, 775 (6th Cir. 2008)....................................................... 18 -19

Fieger v. Thomas, 74 F.3d 740, 745 (6th Cir. 1996) .........................................................20

Gonnella v. Johnson, 115 F. App'x 770, 771 (6th Cir. 2004) ............................................19

Hayse v. Wethington, 110 F.3d 18 (6th Cir. 1997) ............................................................23

Hrivnak, 719 F.3d at 567 (quoting Fialka–Feldman v. Oakland Univ. Bd. of Tr., 639 F.3d 711, 713 (6th Cir. 2011)) .......................................................................................28

Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) ..........................................................18

Izazaga v. Fleming, Civil Action No. 5:14–CV–00213–GNS, 2015 WL 284158, (W.D. Ky. Mar. 18, 2015) .................................................................................................24

Marks v. Tennessee, 554 F.3d 619, 622-23 (6th Cir. 2009) ................................................24

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515 (1982) ............................................................................................................18

Miller v. AOC, 3:01-CV-339-S, 2001 WL 1792453, at *1 (W.D. Ky. Sept. 11, 2001) ... 14

Moore v. Sims, 442 U.S. 415, 432 (1975)) ........................................................................20

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ................................9, 15

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) ..........................................................20

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)16

River City Capital, L.P. v. Bd. of Cnty. Comm'rs, Clermont Cnty., Ohio, 491 F.3d 301, 309 (6th Cir. 2007) .................................................................................................27

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ............................................................23

Scott v. Hall, 35 F.3d 566 (6th Cir. 1994)..........................................................................19

Squire v. Coughlan, 469 F.3d 5512, 556 (6th Cir. 2006)) .................................................20

Stapleton v. Butler Cnty. Comm'rs, No. 1:09-CV-624, 2009 WL 2949313, at *2 (S.D. Ohio Sept. 11, 2009) ..............................................................................................19

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989) ................................13

Sullivan v. Del. Municipal Court., No. 2:13-cv-0497, 2013 WL 4041825, at *1-3 (S.D. Ohio Aug. 8, 2013) ................................................................................................24

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Tenet v. Doe, 544 U.S. 1, 6 n. 4 (2005) .............................................................................18

Tennessee v. Lane, 541 U.S. 509 (2004) ............................................................................17

U.S. Const. art. III, § 2, cl. 1; Hrivnak v. NCO Portfolio Management, Inc., 719 F.3d 564, 566-7 (6th Cir. 2013) .....................................................................................28

Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) ....................15

Virginia Off. of Protection & Advoc. v. Stewart, ___U.S.___, 131 S.Ct. 1632, 1639 (2011) .................................................................................................................... 15

Will v. Mich. Dept. of State Police, 491 U.S. 58, 66-71 (1989) ...................................15, 17

Younger v. Harris, 401 U.S. 37 (1971) ..........................................................................9, 18

FEDERAL STATUTES: 28 U.S.C. § 1257(a) ...........................................................................................................22 42 U.S.C. § 1983 ............................................................................................................9, 15 KENTUCKY CONSTITUTION AND STATUTES Ky. Const. §§ 27, 109, 100(5)(b) .......................................................................................14 K.R.S. § 27A.050 ...............................................................................................................14 FEDERAL RULES: F.R.Civ.P. 12(b)(1), 12(b)(6), 12(d) and 56.......................................................................12 F.R.Civ.P. 19(a)(1)(A) .......................................................................................................27 STATE COURT RULES: RCr 4.00(e) .................................................................................................................. Ex. B RCr 4.04 ....................................................................................................................... Ex. B RCr 4.06 ....................................................................................................................... Ex. B RCr 4.14 ....................................................................................................................... Ex. B RCr 4.40 ....................................................................................................................... Ex. B RCr 4.42 ....................................................................................................................... Ex. B RCr 4.43 ....................................................................................................................... Ex. B RCr 5.20 ....................................................................................................................... Ex. B RCr 12.04 ...........................................................................................................................22

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ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE

CASE NO. 7:15-cv-00021-ART-EBA STEPHANIE WATSON PLAINTIFF v. COMMONWEALTH OF KENTUCKY, et al.

DEFENDANTS

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

The Defendants, Commonwealth of Kentucky, Administrative Office of the

Courts (the “AOC”), and Laurie K. Dudgeon (“Dudgeon”) in her official capacity as the

Director of the AOC, hereby file this Memorandum in Support of their Motion to Dismiss

or for Summary Judgment pursuant to F.R.Civ.P. 12(b)(1) and 12(b)(6), or 12(d) and 56.

I. BACKGROUND

Plaintiff Stephanie Watson is involved in an active criminal case pending in

Floyd District Court, where she is charged with taking “drug remnants from a bio

hazardous disposal box at the Highlands Regional Medical center located in

Prestonsburg, Floyd County, Kentucky.” (Compl. ¶ 8). On January 23, 2015, she was

arrested, and on January 26, 2015, she first appeared for arraignment in Floyd District

Court, but was released from custody on bond with terms and conditions of pretrial,

supervised release as noted in that Court’s “Pretrial Service Supervised Release Order.”

(See Exhibit A, attached hereto). Floyd County District Court Judge Eric D. Hall

determined these initial terms of her bond and attendant conditions of supervised release,


and signed the Supervised Release Order, which was thereafter signed by Plaintiff herself

in accordance with Kentucky Rule of Criminal Procedure, RCr 4.14, a copy of which is

attached hereto in collective Exhibit B.

Under the conditions of her supervised release, Plaintiff was restricted from

“consum[ing] any alcohol or illegal drugs[.]” (Id.). She was instructed, however, that

she could provide the Floyd District Court with a “written letter” from her treating

physician if she needed to take controlled or narcotic medications. (Id.). In pertinent

part, the pretrial Supervised Release Order states:

Prior to taking any controlled/narcotic medication, defendant must present to the Court a written letter from his/her treating physician as to the reason for the prescription/narcotic medication. It must also state what controlled/narcotic medications defendant is on and that there is not any other reasonable medical alternative available. This statement must be signed by the treating physician[.]

(Exhibit A, attached hereto.)

Plaintiff’s criminal charges have been referred to the Floyd County grand jury,

but to date, no indictment has been returned. (See Certified copy of the Floyd District

Court criminal file records regarding Commonwealth v. Stephanie D. Watson, Floyd Dist.

Ct. No. DI 15-F-00022, which have been attached hereto as collective Exhibit C). On

March 2, 2015, Plaintiff appeared, by counsel,1 before Floyd District Judge Hall again for

a preliminary hearing. After the arresting police officer testified to establish probable

cause to bind her over on the pending criminal charges until the grand jury considers her

charges, Plaintiff, through counsel, made an oral motion to “take her off the MCR” (i.e.,

“monitored conditional release” terms) or to lift the MCR’s purported “blanket

1 At least one of the same counsel who filed this federal court Complaint on Plaintiff’s behalf has appeared as Plaintiff’s attorney in the Floyd District Court criminal proceedings. (See Exhibit C).

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prohibition” on her use of medications. (See Exhibit D-2, at 10:51 time at p 1). In

support of her motion, Plaintiff argued that the conditions of her pretrial release – i.e., her

Supervised Release Order from January 26, 2015 (Exhibit A) – were too restrictive.

Plaintiff, by counsel, invited the Floyd District Court to consider certain recent

news reports that “blanket prohibitions” in Kentucky’s Drug Courts were “probably” in

“violation of the Americans with Disabilities Act” (ADA) and that the federal

government had “threatened” Kentucky Drug Courts “with their federal funding.” (DVD

of Floyd District Court proceedings held March 2, 2015, filed and served conventionally

as Exhibit D-1 at 12:08 time, a partial, unofficial transcript of which (prepared by the

undersigned’s staff) is attached hereto as Exhibit D-2, at p.1). Later in those

proceedings, Plaintiff, through counsel, requested the Floyd District Court as follows: “I

would like you to just declare the MCR program in violation of the Americans with

Disabilities Act, if you want to go ahead and do that, you can.” (Exhibits D-1, at 12:29

time & D-2, at p.1) (emphasis added).

The attorney representing the Commonwealth responded to Plaintiff’s motion

stating that “it’s generally the [Floyd District] Court’s practice to allow” defendants to

take drugs if a doctor’s note is produced showing the defendant’s need for the drugs.

(Exhibits D-1 at 11:39 time & D-2, at p.1). The Floyd District Judge then orally held:

“I’ll just take the motion under advisement to allow defense whatever time you need to

produce that medical proof and recommendations from a treating physician.” (Exhibits

D-1 at 11:49 time & D-2, at p.1). Later, the Judge denied Plaintiff’s request to “declare

the MCR program in violation of the ADA,” by holding: “Well, I don’t think I can go

that far but on all these, if someone, if someone is under a treatment program…. I’d just

3


like to see their physician’s treatment plan.” (Exhibits D-1, at 12:37 time & D-2, at p.1)

(emphasis added). At the conclusion of the preliminary hearing, the Floyd District Judge

stated: “And based on the officer’s testimony this matter will be referred to the Floyd

County Grand Jury with the same bond and conditions.” (Exhibits D-1 at 12:55 time &

D-2, at p.2)

As of April 1, 2015, and based upon a review of the Floyd District Court’s Docket

Sheet (attached hereto as Exhibit E), it does not appear that Plaintiff or her counsel has

produced a physician’s statement to the Floyd District Court showing her treatment plan

or need to take any drugs while she is under the conditions of her Supervised Release

Order despite that Court’s March 2, 2015 oral order reiterating that she may do so.2

Plaintiff’s criminal case is still pending before the Floyd District Court, and if a

felony indictment is returned, her case will proceed into Floyd Circuit Court. If no felony

indictment is returned, and only misdemeanor charges are returned, her case will continue

in Floyd District Court. (See RCr 5.20, last sent., attached hereto in collective Exhibit B).

According to Plaintiff’s Complaint (and her counsel’s admissions during the

Floyd District Court hearing on March 2, 2015), Plaintiff “has developed a serious opiate

addiction” and seeks “medication assisted treatment with Vivitrol, or if absolutely

necessary with Methadone or Suboxone” during the pendency of her criminal case.

(Compl. ¶¶ 3, 14). If Plaintiff has failed to produce a doctor’s “written letter” to the

Floyd District Court showing her medical need for “medication assisted treatment”

(hereafter “MAT”) in accordance with the permissive orders of the Floyd District Court,

2 It is unknown whether Plaintiff may have produced a statement from her doctor to the Floyd District Court in camera indicating her need to take medication or drugs during the pretrial release phase of her state court criminal proceeding, but if she has, nothing appears in the criminal court record regarding same as of April 1, 2015. (See Exhibit C).

4


her failure is telling in its own right. If, however, she has produced such a letter, and the

Floyd District Court has orally denied her from taking MAT drugs, she has other

remedies including, for example, making a motion before the Floyd Circuit Court to

modify the conditions of her release, which she may do “at any time” before her criminal

trial. (See RCr 4.40, Exhibit B). If such a motion were denied, she has a direct right of

appeal to the Kentucky Court of Appeals. (See RCr 4.43, Exhibit B).

Given Plaintiff’s judicial admissions during the Floyd District Court preliminary

hearing on March 2, 2015, that the state court “could declare” the terms of her monitored

conditional release (i.e., her supervised release) “in violation of the ADA,” Plaintiff

cannot maintain in this federal court that she does not have an adequate state court

remedy to be heard on her legal arguments that she must be permitted to take MAT drugs

for her opiate addiction during the pendency of her criminal charges. In any event, this

parallel federal court action is not the proper place to seek review of the conditions of her

Supervised Release Order or the Floyd District Court’s oral denial of her request to

“declare” that same is “in violation of the ADA.”

Rather than pursue appropriate relief in state court – by submitting her physician’s

medical proof or filing a motion under RCr 4.40 (see Exhibit B)– Plaintiff has sued the

AOC, its Director, and the Commonwealth of Kentucky in this action, asserting federal

and state claims for the purported denial of the right to access MAT drugs or treatment

modalities. (Compl. ¶ 7). Plaintiff’s Complaint prays for injunctive relief only, and not

monetary relief; specifically, she seeks to enjoin the AOC and Ms. Dudgeon from

“unilaterally refusing to approve the prescription of any medication written by competent

5


doctors” and to “limit [the AOC’s] interference with the prescribing of drugs for drug

addiction by Kentucky doctors.” (Id. at Prayer for Relief).

Despite Plaintiff’s incorrect implications to the contrary, the AOC and Ms.

Dudgeon have no say in whether she is permitted to take prescription medications during

pre-trial or post-conviction criminal proceedings. Such decisions are solely within the

discretion of state court judges, both for pretrial release and Drug Court purposes. This

can be seen from the state court Rules of Criminal Procedure and the Administrative

Procedrural Rules governing the functions of the AOC and its employees.

With respect to pretrial release, the AOC is “the agency established or authorized

by [the Kentucky] Supreme Court . . . to provide pre-trial release investigation and

services for trial courts having jurisdiction of criminal causes.” (RCr 4.00(e), Exhibit B).

The relevant duties of pretrial services officers include: interviewing defendants eligible

for pretrial release, verifying information obtained from them, and making

recommendations to the trial court regarding their pretrial release. (See RCr 4.06,

Exhibit B). Pretrial services officers make no decisions regarding pretrial release, they

only make recommendations, and at all times, the state trial court judge determines

whether, and if so upon what terms and conditions, a defendant may be released pre-trial.

(See RCr 4.04, Exhibit B) (state court judges determine whether to impose any

combination of pretrial release terms ranging from personal recognizance to bail bonds

with attendant “conditions of release,” and if they impose nonfinancial conditions they

are to communicate same to the “local pre-trial service agency[’s]” officers, see RCr

4.14, last sent. & RCr 4.00(c), Exhibit B)). Under no circumstances does a pretrial

6


services officer determine or fix a defendant’s terms and conditions of pretrial release.

That is solely a state court judge’s function.

Likewise with respect to Drug Court, the AOC is merely the administrative “fiscal

agent” that applies for federal grant funding on behalf of Kentucky’s treatment-options

program called “Drug Court.” The AOC is charged by the Kentucky Supreme Court to

“support drug court and administer and oversee its funding,” but that is the extent of its

role. (AP XIII, §1(5) (2010 version), attached in collective Exhibit F). Drug Court is

not a mandatory program imposed on state court judges. Instead, judges choose to

implement such a program within their circuits to have additional options for post-

conviction sentencing, probation revocation, contempt, and/or pretrial diversion – that is,

to have alternatives to incarceration for drug-law offenders and other violators-of-the-law

with substance abuse problems. A detailed explanation of Drug Court is contained in the

Administrative Procedures of the Kentucky Supreme Court (“APs”). See Exhibit F.

Likewise, Drug Court is non-adversarial and favors treatment over incarceration.

While Drug Court requires frequent “monitoring” of participants to determine, in part, if

“[a]bstinence” has been maintained by them since their last check-in with Drug Court

staff (AP XIII, §2(5)), it is totally incorrect, as Plaintiff alleges in her Complaint and

attached affidavits, that MAT modalities are prohibited as a matter of policy or otherwise.

Indeed, pursuant to §23(5) of the APs, Pt. XIII (2010 version), it was expressly provided

that “[m]edically supervised detoxification or treatment that will affect drug testing on a

temporary basis may be authorized by the drug court judge” for up to six months. (AP

XIII, §23(5) (2010 version), Exhibit F). This subsection makes it crystal clear that the

decision to permit MAT drugs is: (i) within the sole discretion of the state court judge,

7


not the AOC or its Director, and (ii) a decision that the judge makes on a case-by-case

basis regarding a particular Drug Court participant.

Furthermore, due to a very recent change in federal grant application-for-funding

terms and an announcement by the White House Office of National Drug Control Policy

made in February 2015, indicating that state Drug Courts receiving federal dollars should

not prohibit the use of MAT drugs, the Kentucky Supreme Court has now amended its

Drug Court Rules as of March 24, 2015. (See Affidavit of Connie M. Payne, attached

hereto as Exhibit G, ¶5, at p. 1 & Payne Aff. Attachment 1). The Drug Court Rule

amendments deleted AP XIII, §23(5) to remove the six-month limitation on MAT drugs

formerly contained in the 2010 version of that subsection. (Exhibit G, ¶7, at p. 2).

Neither the AOC nor Ms. Dudgeon as its Director could prevent the Floyd District

Court from permitting Plaintiff to use MAT drugs while her criminal charges are

pending. The Drug Court Rules plainly refute that these Defendants have denied anyone

access to MAT modalities. (See Exhibits F & G, ¶¶ 4 & 6-7, at pp. 1 & 2)). Moreover,

Plaintiff knows the AOC has never prohibited the use of MAT drugs, as a matter of

policy or otherwise because Plaintiff even alleges in paragraph 19 of her Complaint that

she knows of some Kentucky Drug Courts who permit participants to use MAT drugs.

The fact she makes this allegation contradicts her Complaint’s other allegations that these

Defendants somehow have prevented MAT drugs from being used. “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the

line between possibility and plausibility of ‘entitlement to relief.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

8


The contradiction in her allegations as to who supposedly has prevented her access to

MAT drugs fails the Iqbal/Twombly “plausibility” test.

In addition to the above, many of Plaintiff’s claims are barred by the Eleventh

Amendment, including all of Plaintiff’s state constitutional claims and several of her

federal claims asserted against the Commonwealth itself, and against the AOC as a state

entity. Under the Eleventh Amendment, Plaintiff may seek prospective relief only

against Ms. Dudgeon in her official capacity pursuant to 42 U.S.C. § 1983 for purported

federal constitutional violations, or for other federal statutory violations pursuant to the

so-called “stripping doctrine” of Ex parte Young, 209 U.S. 123 (1908). Plaintiff may not,

however, sue the state itself or a state agency (such as the AOC), and may not seek

equitable relief against Ms. Dudgeon for purported state constitutional violations at all.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).

Moreover, whatever portion of Plaintiff’s Complaint is not dismissed pursuant to

the Eleventh Amendment, should still be dismissed pursuant to the doctrine of Younger

abstention. Younger v. Harris, 401 U.S. 37 (1971). Per Younger, this Court should

abstain from considering Plaintiff’s claims for equitable relief since any such relief would

disrupt a pending state court criminal case and Plaintiff has an adequate avenue for relief

within the state court system to request and demonstrate any need she may have for MAT

drugs, both during the pretrial release phase of her case and any possible referral to Drug

Court (should she be a candidate for same).

Within Kentucky’s court system, Plaintiff may appeal any determination with

which she is dissatisfied through the state appellate courts and thereafter to the United

States Supreme Court on any federal issue (such as the ADA, the Rehabilitation Act or

9


the United States Constitution). The state courts are competent to address these federal

issues; indeed, Plaintiff, by counsel, already argued to the Floyd District Court that it

“can” and should “declare” the terms of Plaintiff’s monitored conditional release “in

violation of the ADA.” (See Exhibits D-1, at 12:29 time & D-2, at p. 1). On the basis of

comity, and equitable considerations, this Court should refrain from deciding matters of

important state policy currently joined in an ongoing state court criminal proceeding.

To the extent that Plaintiff seeks to have this federal district court review and

revise the terms and conditions of the Floyd District Court’s Supervised Release Order

(Exhibit A), or to reverse the Floyd District Court’s oral refusal of her request to “go [so]

far” as to “declare” the monitored release program “in violation of the ADA,” (see

Exhibits D-1, at 12:29 time & D-2, at p. 1), her claims are barred by the Rooker-Feldman

doctrine. If Plaintiff does not agree with the orders of the Floyd District Court, she may

not “appeal” to this federal district court to review or correct same. This Court lacks

subject matter jurisdiction to review the orders or rulings of Floyd District Court.

Plaintiff’s claims are also unripe. There are no allegations in her Complaint of an

actual injury. Instead, she merely claims that some unidentified employee of the AOC

stated that “she could not take Methadone or Suboxone or similar substances as a

condition of release.” (Compl. ¶ 16). She never pleads that this unidentified individual

is Defendant Laurie K. Dudgeon. Nor could she, as neither Ms. Dudgeon nor any other

AOC employee has the power or authority to tell a state court judge what he or she must

do with respect to determining the terms of a criminal defendant’s pretrial bail bond or

conditions of pretrial release. Not only is this allegation speculative, it is patently

inconsistent with her Supervised Release Order (Exhibit A) that reveals on its face that

10


Plaintiff has been invited to produce to the Court her treating doctor’s “written letter”

showing her need for controlled and narcotic medications. It is also inconsistent with the

Floyd District Court’s oral orders in the March 2, 2015 hearing (see Exhibits D-1, at

11:49 time & D-2, at p. 1), wherein the Judge reiterated that he would take her motion to

use MAT drugs under advisement and is awaiting her treating doctor’s statement as to her

need for same. If Plaintiff does what the Floyd District Court has ordered, she may well

be permitted to use MAT drugs during her pretrial release and perhaps too if she is

referred to, and accepted into Drug Court itself. It is simply too early to tell what might

happen in light of the many “ifs” in the foregoing sentences, and precisely because of

those “ifs,” Plaintiff’s claims in this action are unripe for review.

Finally, the requested injunctive relief in Plaintiff’s Complaint is barred by

mootness. To the extent she wants to enjoin the AOC’s Drug Court policies as

unconstitutional or in violation of federal statutes purportedly because those policies ban

the use of MAT modalities,3 any remedy Plaintiff could ask of this Court has already

been provided by Chief Justice Minton’s recent amendments to the Drug Court Rules

issued on March 24, 2015. (See Exhibit G). Prior to such amendments, Drug Court

judges could permit “[m]edically supervised detoxification or treatment” for up to six

months (see Exhibit F, AP XIII §23(5)(2010 version)), but after such amendments,

temporal limitations no longer exist with respect to MAT modalities. Consequently, a

state Drug Court judge may permit Drug Court participants to use MAT drugs for as long

as the judge sees fit depending, of course, upon the specific circumstances of each case

and the needs of the participant. Plaintiff could not obtain more equitable relief in this

3 An allegation that lacks factual basis as seen in the Drug Court Rules themselves. (See AP XIII, §23(5) (2010 version) (Exhibit F).

11


action than what has been unilaterally provided by these recent Drug Court Rules

amendments. So, the Complaint’s claim for injunctive relief is now moot.

II. STANDARD OF REVIEW

Pursuant to F.R.Civ.P. 12(b)(1), 12(b)(6), or 12(d) and 56, Defendants move to

dismiss or for summary judgment. Under Rule 12(b)(6), “[t]o survive a 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)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court’s

holding in Iqbal guides this court to employ a two-step analysis when evaluating a

complaint: first, it must “identify[] the allegations in the complaint that are not entitled to

the assumption of truth”; second, it must consider the remaining allegations “to determine

if they plausibly suggest an entitlement to relief.” Id. at 680-81. Facial plausibility is

met where a “plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

Defendants further move pursuant to F.R.Civ.P. 12(b)(1) for dismissal because of

Eleventh Amendment immunity and because the Plaintiff pleads claims that are not ripe

for adjudication or barred by the Rooker-Feldman doctrine, and furthermore, the Plaintiff

requests injunctive relief that is moot in any event. Additionally, pursuant to F.R.Civ.P.

12(b)(6), Defendants request this Court not hear this case pursuant to Younger abstention.

Finally, Defendants recognize that they have attached several exhibits to their Motion

that are outside of the pleadings. Defendants believe these exhibits fit the requirements

of FRE 201, and as such, the Court should take “judicial notice” of them. If the Court

believes that considering such exhibits requires invocation of F.R.Civ.P. 12(d),

12


Defendants have no objection to this Court’s conversion of their motion into one for

summary judgment under F.R.Civ.P. 56.

The standard for review under F.R.Civ.P. 56 is a familiar one. Summary

judgment is intended to “secure the just, speedy and inexpensive determination of every

action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). It is not a “disfavored

procedural shortcut,” but rather an integral means of securing a speedy, just resolution of

an action. Id. at 327. Accordingly, summary judgment is proper if “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” F.R.Civ.P. 56(a).

The party seeking summary judgment bears the initial burden of informing the

court of the basis for its motion and demonstrating the absence of a genuine issue of

material fact. Celotex Corp., 477 U.S. at 323 (1986). Once the moving party has met

this burden, the nonmoving party must “designate specific facts showing that there is a

genuine issue for trial.” Id. at 324. The mere existence of some alleged factual dispute

will not defeat a properly supported motion for summary judgment; rather, there must be

a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986) (emphasis added). Where there is insufficient evidence favoring the nonmoving

party for a trier of fact to decide for that party, . . . summary judgment may be granted.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989).

III. ANALYSIS

This Court is without subject matter jurisdiction to hear the majority of Plaintiff’s

claims because (a) the Defendants are immune from suit, (b) the Plaintiff’s claims are

unripe, and (c) the Plaintiff’s claims requesting injunctive relief are moot as well.

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Furthermore, the Court should not hear any of Plaintiff’s claims due to the doctrine of

Younger abstention since a parallel state court criminal action is pending against the

Plaintiff wherein she may litigate all of her purported federal law claims asserted in this

action. Finally, even if Younger did not preclude the hearing of Plaintiff’s claims, at least

some of her claims may be barred by the Rooker-Feldman doctrine.

A. Eleventh Amendment Immunity Bars Many of Plaintiff’s Claims. The Eleventh Amendment to the U.S. Constitution provides that:

The 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.

In other words, a state is immune from suit by an individual unless such state consents to

be sued. The AOC serves “as the staff for the Chief Justice in executing the policies and

programs of the Court of Justice.” K.R.S. § 27A.050. The AOC and its staff serve the

Chief Justice of the Kentucky Supreme Court in his role as the executive head of the

Court of Justice, one of the three principal departments of Kentucky government. See

Ky. Const. §§ 27, 109, 110(5)(b). The AOC is “in fact, inseparable from the office of the

Chief Justice itself.” Ex Parte Farley, 570 S.W.2d. 617, 620 (Ky. 1978). “[T]here is no

dispute that the AOC is an arm of Kentucky’s government. This means that the AOC is

entitled to Eleventh Amendment protection and does not constitute a ‘person’ under §

1983.” Miller v. AOC, 3:01-CV-339-S, 2001 WL 1792453, at *1 (W.D. Ky. Sept. 11,

2001) (unpub.); Brown v. Univers. of Ky. Comprehensive Assessment & Training Servs.,

12-CV-123-KSF, 2013 WL 990423, *9 at n.3 (E.D. Ky. Mar. 13, 2013) (in dicta, holding

that the AOC and other state entities sued were protected by Eleventh Amendment

14


sovereign immunity); see generally Will v. Mich. Dept. of State Police, 491 U.S. 58, 66-

71 (1989)(a state agency is not a “person” within the meaning of 42 U.S.C.§1983).

Plaintiff asserts state and federal claims against the Commonwealth of Kentucky,

the AOC and Ms. Dudgeon in her official capacity. However, states may not be sued in

federal court for violations of state law. Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 106, 121 (1984); see also Bleid Sports, LLC v. Nat'l Collegiate

Athletic Ass'n, 976 F. Supp. 2d 911, 914 (E.D. Ky. 2013) (refusing to add public

university as a party because the “Eleventh Amendment's grant of immunity ‘is far-

reaching and bars all suits, whether for injunctive, declaratory or monetary relief, against

the state and its departments, by citizens of another state, foreigners, or its own

citizens’”). Furthermore, state officials named in their official capacities may not be sued

in federal court for violations of state law when “the state is the real, substantial party in

interest.” Pennhurst, 465 U.S. at 89. “[W]hen a federal court instructs state officials on

how to conform their conduct to state law, this conflicts directly with the principles of

federalism that underlie the Eleventh Amendment.” Id. at 90. As such, Plaintiff’s

Complaint seeks not to vindicate federally protected rights in prospective fashion, but

rather exceeds the “stripping doctrine’s” exception to the Eleventh Amendment per Ex

parte Young, 209 U.S. 123 (1908). See Virginia Off. of Protection & Advoc. v. Stewart,

___U.S.___, 131 S.Ct. 1632, 1639 (2011), citing Verizon Md. Inc. v. Public Serv.

Comm'n of Md., 535 U.S. 635, 645 (2002). Therefore, this Court is without jurisdiction

to hear Plaintiff’s claims concerning purported violations of the Kentucky Constitution,

and all such state law claims must be dismissed. (See Compl. at ¶¶ 25-26).

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Plaintiff also alleges violations of federal law, in particular, she alleges claims

under the following theories: (1) ADA; (2) Rehabilitation Act; and (3) § 1983 for

purported federal constitutional violations under the Due Process and Equal Protection

Clauses. Plaintiff seeks injunctive and declaratory relief in that she seeks to enjoin the

AOC from “unilaterally refusing to approve the prescription of any medication written by

competent doctors” and to declare that the AOC shall “limit its interference with the

prescribing of drugs for drug addition by Kentucky doctors.” (Compl., Prayer for Relief

at pg. 8). Although she does not seek monetary damages, she does seek attorney’s fees

and costs pursuant to 42 U.S.C. § 1988. (Id.).

Under Ex parte Young, 209 U.S. at 123, a state official sued in official capacity

may be enjoined from taking action that violates federal law pursuant to the Supremacy

Clause of the United States Constitution. 4 Id. at 155–56. The exception for injunctive

relief recognized in Ex Parte Young “has no application in suits against the States and

their agencies, which are barred regardless of the relief sought.” Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). Thus, Ex Parte Young

permits claims to be asserted against Ms. Dudgeon in her official capacity, but only for

alleged federal constitutional or federal statutory violations and only to the extent that

prospective injunctive relief is sought, not monetary damages. However, the

4 The Ex parte Young “stripping doctrine” permits state officials, in their official capacities, to be sued to prevent their violation of federal law due to the operation of the Supremacy Clause. That Clause does not itself, however, create a cognizable private right of action, and under certain federal statutory regimes, injunctive relief against state officials cannot be pursued at all for alleged violations of federal statute. See, e.g., Armstrong, et al, v. Exceptional Child Center, Inc., et al, ___U.S.___, Slip. Op. No. 14-15 (decided March 31, 2015)(Supremacy Clause does not create an implied right of action to attack Medicaid-provider rates set by a state purportedly in violation of federal statutory standards as to how states are to establish such rates).

16


Commonwealth of Kentucky and the AOC, as a state agency, may not be sued at all

under §1983 for constitutional violations since they are not “persons” under that statute.

See Will v. Mich. Dept. of State Police, 491 U.S. 58, 66-71 (1989).

Accordingly, Plaintiff’s Complaint can survive Eleventh Amendment immunity,

but only to the extent that it asserts federal claims against Ms. Dudgeon, in her official

capacity, for injunctive relief, and, in all other respects, it must be dismissed as against

the Commonwealth and the AOC with the exception of the Rehabilitation Act and

possibly the ADA claims.5

5 Eleventh Amendment immunity is not a bar to the Plaintiff’s claims against the Commonwealth of Kentucky and the AOC regarding Kentucky’s Drug Courts under the Rehabilitation Act and possibly the ADA. The Commonwealth and the AOC have waived immunity with respect to Drug Courts because the AOC has accepted federal grant funding, the terms of which subjects these state Defendants to the Rehabilitation Act and potential suit thereunder. And, to the extent Drug Courts involve matters of “access to the courts” protected by the Due Process Clause, then Title II of the ADA may also override the Commonwealth’s and the AOC’s immunity for purported violations of the ADA per Tennessee v. Lane, 541 U.S. 509 (2004). These Defendants, however, reserve their right to assert Eleventh Amendment immunity to the extent that Drug Courts do not concern an “access to court” issue, which would render Tennessee v. Lane factually distinguishable. In Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court held that Congress failed to develop an adequate legislative record to support its passage of the ADA’s override of the Eleventh Amendment under Section 5 of the Fourteenth Amendment with respect to some ADA claims against states. See id. at 360. As a result, the ADA’s override of the Eleventh Amendment regarding Drug Courts may not be constitutionally valid. But, to determine its validity, each application of the ADA’s override must be evaluated on a case-by-case basis, and if Tennessee v. Lane is distinguishable from this case, then the Eleventh Amendment could still prevent Plaintiff from suing the Commonwealth and the AOC under Title II of the ADA. Fortunately, the complex issue whether the Eleventh Amendment immunity of the Commonwealth and the AOC has been validly overridden does not need to be resolved since Plaintiffs’ ADA claims may be easily disposed of on other grounds, as discussed infra, under the doctrines of Younger, Rooker-Feldman, ripeness and mootness.

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B. Abstention is Proper Pursuant to Younger and its Progeny, Requiring Dismissal of the Remainder of Plaintiff’s Complaint.

This Court should abstain from reviewing any portion of Plaintiff’s Complaint

that survives the Eleventh Amendment’s bar because there is an ongoing criminal case

pending against Plaintiff involving the very issues she has pleaded in this federal court

action. In Younger v. Harris, the United States Supreme Court held that federal courts

should refrain from interfering with pending state criminal proceedings when important

state interests are involved. Younger v. Harris, 401 U.S. 37 (1971). Younger abstention

is based upon “the basic doctrine of equity jurisprudence that courts of equity should not

act, and particularly should not act to restrain a criminal prosecution, when the moving

party has an adequate remedy at law and will not suffer irreparable injury if denied

equitable relief.” Id. at 43-44 (emphasis added). Likewise, the Younger doctrine is

designed to “prevent erosion of the role of the jury” and “avoid a duplication of legal

proceedings and legal sanctions where a single suit would be adequate to protect the

rights asserted.” Id. at 44. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)

(The Younger doctrine “rests upon the traditional reluctance of courts of equity...to

interfere with a criminal prosecution.”). When faced with a threshold question of

whether Younger abstention applies, a court should first address the Younger issue prior

to engaging in any analysis of the merits. See Tenet v. Doe, 544 U.S. 1, 6 n. 4 (2005).

Pursuant to Younger and its progeny, a federal court must abstain if: (1) the

underlying proceeding constitutes an ongoing judicial proceeding; (2) the proceeding

implicates an important state interest; and (3) there is an adequate opportunity in the state

proceeding to litigate the constitutional challenge. Middlesex Cnty. Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515 (1982); Fieger v. Cox, 524

18


F.3d 770, 775 (6th Cir. 2008). If these three criteria are met and “so long as there is no

showing of bad faith, harassment, or some other extraordinary circumstance that would

make abstention inappropriate, the federal courts should abstain.” Middlesex, 457 U.S. at

435. Abstention is proper in the instant case because each of these requirements exist and

no extraordinary circumstance exists that would make abstention inappropriate.

1. The judicial proceeding that is the subject of Plaintiff’s Complaint is ongoing in state court.

It is undisputed that Plaintiff’s pending criminal case before the Floyd District

Court is a “judicial proceeding” as contemplated by Younger. See Middlesex, 457 U.S. at

432. Younger abstention is well established when the proceeding sought to be enjoined is

a criminal proceeding. In fact, state criminal proceedings were the first type of

proceedings recognized as a candidate for such abstention and dismissal. See Younger,

401 U.S. at 755. Therefore, the first prong is clearly satisfied since the state criminal

proceeding commenced before Plaintiff filed the present complaint in federal court.

2. The state court proceeding against Plaintiff implicates important state interests.

The second prong of the Younger analysis seeks to determine if the federal court’s

failure to abstain would implicate an important state interest. The Sixth Circuit Court of

Appeals has found that states have a “paramount” interest in enforcing their criminal

laws. Scott v. Hall, 35 F.3d 566 (6th Cir. 1994). See also Gonnella v. Johnson, 115 F.

App'x 770, 771 (6th Cir. 2004) (“state criminal proceedings involve important state

interests”); Stapleton v. Butler Cnty. Comm'rs, No. 1:09-CV-624, 2009 WL 2949313, at

*2 (S.D. Ohio Sept. 11, 2009) (“criminal cases implicate important state interests as state

criminal prosecutions have traditionally been considered an arena in which federal courts

19


decline to interfere”); Faller v. Harris, No. CIV.A.1:06CV-00118-J, 2007 WL 2461706,

at *5 (W.D. Ky. Aug. 23, 2007) (“[T]he State has an important interest in prohibiting the

criminal conduct allegedly committed by [the plaintiff] … in violation of a Kentucky

criminal statute.”). Here, Plaintiff was arrested for “taking drug remains from a bio

hazardous disposal box at the Highlands Regional Medical Center….” (Compl. § 8.) As

a result, she has several pending criminal charges in state court. See id.; Exhibit C. The

Commonwealth of Kentucky has a strong interest in enforcing its criminal laws and

determining the conditions of release of its criminal defendants, including their

consumption of illegal and prescription drugs both during the pre-trial and post-

conviction stages of criminal proceedings. As such, the second requirement strongly

favors abstention in the present action.

3. Plaintiff has adequate opportunities to raise any constitutional challenges that exist within the state court proceedings.

The Sixth Circuit has explained that “[a] plaintiff must have ‘an adequate

opportunity in the state proceedings to raise constitutional challenges’ in order to satisfy

the third prong of the Younger abstention test.” Am. Family Prepaid Legal Corp. v.

Columbus Bar Assoc., 498 F.3d 328, 334 (6th Cir. 2007) (quoting Squire v. Coughlan,

469 F.3d 5512, 556 (6th Cir. 2006)). “[W]hen a litigant has not attempted to present his

federal claims in related state-court proceedings, a federal court should assume that state

procedures will afford an adequate remedy, in the absence of unambiguous authority to

the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Therefore, “the

burden on this point rests on the federal plaintiff to show ‘that state procedural law barred

presentation of [its] claims.’” Id. at 14 (quoting Moore v. Sims, 442 U.S. 415, 432

(1975)). See Fieger v. Thomas, 74 F.3d 740, 745 (6th Cir. 1996) (holding that abstention

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is proper “unless state law clearly bars the interposition of the constitutional claims”). In

this case, not only will state court afford Plaintiff a full and fair opportunity to air her

federal statutory and constitutional claims and demands to be permitted to use MAT

modalities during pretrial release and/or in Drug Court (should she be referred to, and

accepted into same), Plaintiff has, by counsel, already moved the Floyd District Court to

address at least one of her federal claims – her ADA claim – and she informed that Court

not only that it “can” (meaning it possessed the legal capability to do so), but that it

should “declare” the conditions of her monitored release “in violation of the ADA.”

(Exhibits D-1, at 12:29 time & D-2, at p. 1).

Plaintiff nonetheless pleads that the “restrictions placed upon her by the MCR

Program …improperly interferes [sic] with her right to receive appropriate treatment for

opiate addiction” and that the Kentucky Drug Court System’s purported limitation on

“the use of medications such as Suboxone and Methadone” is “unconstitutional.”6

Compl., ¶¶17-18. Specifically, Plaintiff alleges the Defendants’ policies violate the Due

Process and Equal Protection Clauses of the United States Constitution, Title II of the

ADA, Section 504 of the Rehabilitation Act, and various state laws. See id. at ¶¶ 5, 20,

24. However, the Younger doctrine mandates that these statutory and constitutional

issues be addressed in the state court criminal proceeding instead of this Court. Indeed,

the very relief that Plaintiff seeks – the right to use Suboxone or another similar MAT

drug – has been offered to Plaintiff in her Supervised Release Order (Exhibit A) and

6 These allegations are implausible under pleading standards or do not raise a genuine issue of disputed fact under summary judgment standards because the Drug Court Rules themselves reveal conclusively otherwise. (See AP XIII §23(5)(2010 version) (Exhibit F) and March 24, 2015 amendments to those Rules (Exhibit G). Furthermore, the terms and conditions of Plaintiff’s Supervised Release Order reveal conclusively otherwise. (See Exhibit A).

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orally ordered and reiterated by the Floyd District Court in the March 2, 2015 hearing’s

ruling on Plaintiff’s motion that she be permitted to use such drugs. (See Exhibits D-1 at

11:49 time & D-2, at p. 1).

Not only does Plaintiff have an adequate opportunity to raise and litigate her

purported federal law issues in state criminal court, she has been invited by the Floyd

District Court to produce her medical doctor’s proof showing her need for MAT drugs,

but to date, she has apparently not done so. Even if she does produce such proof, and her

request is denied by the Floyd District Court, RCr 4.40 provides that “[t]he defendant . . .

may by written motion apply for a change of conditions of release at any time before the

defendant’s trial.” (Exhibit B, emphasis added). RCr 4.43 further provides that “[a]ny

defendant aggrieved by a decision of the circuit court on a motion to change the

conditions of bail may appeal that decision to the Court of Appeals….” (Id.) If a

judgment of guilt is entered against Plaintiff, and a final sentence pronounced (including

potentially a post-conviction referral to Drug Court), RCr 12.04 sets forth when and how

an appeal may be taken during which such appeal Plaintiff could also litigate her federal

rights under the ADA, the Rehabilitation Act, or the United States Constitution. If

Plaintiff remains unhappy with the outcome of any state court rulings on her federal

issues, she may request review by the Kentucky Supreme Court or even petition the

United States Supreme Court for certiorari in accordance with 28 U.S.C. § 1257(a).

During each stage of her criminal proceeding, Plaintiff is free, if not required, to

assert all federal issues that form the basis of her action in this Court. As such, Younger

22


precludes this Court from deciding the very issues that should be exclusively addressed in

her state court criminal proceeding.7

C. Rooker-Feldman Doctrine Bars Review of any Final Order of the Floyd District Court Regarding the Terms and Conditions of Plaintiff’s Pretrial Release.

Pursuant to the Rooker-Feldman doctrine, federal district courts lack subject

matter jurisdiction to review decisions of state courts. Only the United States Supreme

Court may review decisions of state courts raising federal issues. Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84,

(2005). The doctrine ordinarily applies where the state court decision is final and if the

plaintiff’s injury does not stem from “some other [independent] source besides the state

court decision.” Exxon, 544 U.S. at 293. If the Rooker-Feldman doctrine does not apply,

“state law determines whether the defendant prevails under principles of preclusion.” Id.

Plaintiff’s “source of injury” in this case is not entirely clear. The Floyd District

Court has repeatedly told Plaintiff that if she needs to take MAT drugs, all she need do is

produce her treating physician’s statement indicating that need and the treatment plan.

(See Exhibits A & D-1 at 11:49 & 12:36 time & D-2, at pp. 1). To date, it does not

appear that Plaintiff has availed herself of these opportunities. Regardless, to the extent

7 This case is analogous to Hayse v. Wethington, 110 F.3d 18 (6th Cir. 1997), wherein the Sixth Circuit applied Younger abstention holding that a federal court plaintiff had adequate remedies under state law within state court to enforce injunctive relief rights bound up in an earlier state court injunction. The Hayse court noted that state courts have ongoing, continuous jurisdiction over injunctions, and are therefore, capable of enforcing same by of contempt proceedings or otherwise. Likewise here, the state courts have ongoing jurisdiction to determine and modify the terms of a criminal defendant’s bail bond and attendant conditions of pretrial release. See RCr 4.40 & 4.42 (Exhibit B). Younger should, therefore, apply here too.

23


that her “source of injury” stems (1) from the Floyd District Court’s Supervised Release

Order (Exhibit A) requiring her to submit a doctor’s “written letter” showing her need to

take MAT drugs, or (2) from the Floyd District Court’s oral order in the March 2, 2015

hearing refusing to “declare” Plaintiff’s pretrial monitored release conditions “in

violation of the ADA,” her Complaint’s claims attacking either or both of these orders are

barred by the Rooker-Feldman doctrine. This doctrine raises an issue of subject matter

jurisdiction pertaining to the Court’s power to entertain claims seeking review of the

orders or rulings of the Floyd District Court. Cf. Wishnefsky v. Addy, 969 F. Supp. 953

(1997) (Rooker-Feldman may apply to certain interlocutory orders of state court).8

The Western District of Kentucky Court recently held in Izazaga v. Fleming, Civil

Action No. 5:14–CV–00213–GNS, 2015 WL 284158, (W.D. Ky. Mar. 18, 2015), that the

Rooker-Feldman doctrine barred a plaintiff’s federal complaint that alleged constitutional

violations from a family court order. The court held that Rooker-Feldman precluded the

federal court review because the complaint sought “review and reversal of at least one

court decision: an order from the Christian Family Court denying Izazaga visitation of his

daughter.” Id. Also, in Sullivan v. Del. Municipal Court., No. 2:13-cv-0497, 2013 WL

4041825, at *1-3 (S.D. Ohio Aug. 8, 2013), the Southern District of Ohio court held that

8 Rooker-Feldman has, in recent years, been narrowed to apply mostly to final state court judgments and orders, and thus, will typically not apply when there are parallel state and federal court proceedings. See, e.g., Marks v. Tennessee, 554 F.3d 619, 622-23 (6th Cir. 2009); Exxon, 544 U.S. at 292. However, in this case, Plaintiff’s Complaint appears to challenge the Floyd District Court’s orders affixing the terms of her pretrial bail bond and attendant conditions of pretrial supervised release (i.e., Exhibit A), and the Floyd District Court’s orders affixing such terms are, at least for the time being, “final” unless and until the Floyd District or Floyd Circuit Court sets them aside upon subsequent motion of the Plaintiff or the Commonwealth, or either of those Courts’ own motion. See, e.g., RCr 4.40 & 4.42 (Exhibit B).

24


that it was review of certain aspects of the civil plaintiff’s sentence that the plaintiff had

received in state criminal court. Plaintiff had contended that the state court improperly

calculated his DUIs and, therefore, improperly sentenced him and violated his civil

rights. Id.; see also Collins v. Acree, Civil Action No. 12-CV-357-KSF, 2013 WL 19932

81, at *1-5 (E.D. Ky. May 13, 2013) (dismissing §1983 claims resulting from a state

court domestic order and stating that the plaintiff could not “side-step” legal

determinations made in state court by filing a § 1983 action).

If Plaintiff is unhappy with the Floyd District Court’s orders regarding the terms

of her pretrial supervised release, she has an adequate remedy under state law, to wit: she

can file a RCr 4.40 motion “at any time” requesting a “change of conditions of release.”

If Plaintiff is indicted for a felony, she may file “at any time” in Floyd Circuit Court a

motion pertaining to her pretrial conditions of release (see RCr 4.40 & 4.42), and if she’s

still not satisfied, she may appeal the Circuit Court’s orders pursuant to RCr 4.43 into

Kentucky’s appellate courts. Moreover, she can raise and litigate her constitutional and

statutory issues that she has asserted in this action in the state courts, and on appeal, and

could even petition the United States Supreme Court for certiorari per 28 U.S.C.

§1257(a), if she remains dissatisfied. It is, however, improper for this Court to review the

state court’s orders fixing the terms of Plaintiff’s pretrial bail bond and accompanying

conditions of release since this Court is one of original – not appellate – jurisdiction.

IV. Plaintiff’s Claims are Not Ripe.

None of Plaintiff’s claims are ripe because they are not “fit...for judicial decision”

and there is minimal hardship to the parties to withhold decision. Abbott Labs. v.

Gardner, 387 U.S. 136, 149 (1967). “The jurisdiction of federal courts is limited by

25


Article III of the United States Constitution to consideration of actual cases and

controversies, therefore federal courts are not permitted to render advisory opinions.”

Bigelow v. Michigan Dep't of Natural Res., 970 F.2d 154, 157 (6th Cir. 1992) (holding

that arguments about unconstitutional taking were not ripe because the plaintiff had not

completed the state administrative process concerning the property).

In this respect, the Sixth Circuit Court of Appeals has held that:

1. [t]he key factors to consider when assessing the ripeness of a dispute are: (1) the likelihood that the harm alleged by the party will ever come to pass; (2) the hardship to the parties if judicial relief is denied at this stage in the proceedings; and (3) whether the factual record is sufficiently developed to produce a fair adjudication of the merits. 2.

3. Dealer Computer Servs., Inc. v. Dub Herring Ford, 547 F.3d 558, 561 (6th Cir. 2008).

4. 5. As to the first of these factors, Plaintiff has not been denied MAT drugs by

the state court, and in fact, she has not even been indicted, much less convicted.

Moreover, if Plaintiff produces her doctor’s treatment plan showing her need for

MAT drugs while she is awaiting criminal trial, the Floyd District Court may very

well rule in her favor and permit her to take medications for her opiate addiction.

If Plaintiff gets indicted for a felony, it is unknowable whether she will be

convicted, but she could not be a candidate for post-conviction Drug Court unless

she were convicted. And, even if she wanted to be accepted into pre-trial

diversion Drug Court, she would still have to gain the agreement of the

Commonwealth’s Attorney as well as her presiding Judge before she could be

referred to such Drug Court. Because Plaintiff’s requested relief is “‘anchored in

future events that may not occur as anticipated, or at all, the likelihood of harm

factor strongly weighs against finding [her claims] ripe for review.” Dealer

26


Computer Servs., Inc. v. Dub Herring Ford, 547 F.3d at 562.

There is no hardship to the Plaintiff if no relief is granted in this action because

she has another forum within which to demonstrate or litigate her need for MAT drugs

both at pre-trial or post-conviction stages of her state court criminal proceeding. This

Court is merely being asked to render an advisory opinion on a matter that has not yet

been resolved in favor of, or against, Plaintiff in her state court criminal case, and the

record in that case is not fully developed for this Court to properly assess Plaintiff’s

claims. Without any state court order from the pretrial or Drug Court judge denying

Plaintiff access to MAT drugs, Plaintiff’s claims are simply impossible to analyze.

Since Plaintiff’s claims are not ripe, this Court lacks subject matter jurisdiction

over them. See River City Capital, L.P. v. Bd. of Cnty. Comm'rs, Clermont Cnty., Ohio,

491 F.3d 301, 309 (6th Cir. 2007).

Additionally, Plaintiff has not joined the proper party-defendants to this action in

that neither the AOC nor its Director have denied her access to medications in any way.

Only state court judges can set or modify the terms of an accused’s bail bond and

conditions of supervised release. In this case, so far, the only individual with authority to

do so with respect to Plaintiff Stephanie Watson is Floyd District Court Judge Eric D.

Hall.9 To the extent Plaintiff’s complaint is an attempt at a class action, she has not pled

any of the requirements of Federal Rule 23 and, therefore, the Complaint should be

dismissed on those grounds as well.

9 In the event that the Court denies the Defendants’ motion herein, this action should not proceed without the joinder of the state court judge that denies Plaintiff the opportunity to use MAT modalities during her pretrial release or in Drug Court. Such judge is a necessary party whose presence is required to “accord complete relief among the existing parties” since the decision to allow MAT drugs is within his sole discretion. F.R.Civ.P. 19(a)(1)(A).

27


V. Plaintiff’s Complaint Seeks Injunctive Relief That is Now Moot.

Article III of the United States Constitution limits the jurisdiction of federal courts

to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1; Hrivnak v. NCO Portfolio

Management, Inc., 719 F.3d 564, 566-7 (6th Cir. 2013). This is “a cradle-to-grave

requirement” that must be satisfied at the time the plaintiff’s complaint is filed, as well as

the entire life of the case.” Hrivnak, 719 F.3d at 567 (quoting Fialka–Feldman v.

Oakland Univ. Bd. of Tr., 639 F.3d 711, 713 (6th Cir. 2011)). Thus, if the plaintiff loses

a “personal stake” in the action that makes it “‘impossible for the court to grant any

effectual relief whatever,’ the case must be dismissed as moot.” Hrivnak, 719 F.3d at

567 (quoting Church of Scientology v. U.S., 506 U.S. 9, 12 (1992)).

To the extent Plaintiff argues that the AOC’s Drug Court policies are illegal or

unconstitutional, her claims have been rendered moot by the Kentucky Supreme Court’s

recent amendments to the Rules governing Drug Courts. (See Exhibit G). Until these

recent amendments, Section 23(5) of the Administrative Procedures authorized the use of

MAT drugs in Drug Court, but only up to six months. (Exhibit F). On March 24, 2015,

the Kentucky Supreme Court amended the Rules by removing Section 23(5) altogether.

(See Exhibit G). Drug Court judges may now allow Drug Court participants to use MAT

drugs without any temporal limitations in accordance with a participant’s medical need.

These amendments afford Plaintiff all the relief that she could hope to obtain on the

claims she asserts in this action. Kentucky Drug Courts have never banned all MAT

drugs as she has alleged (under the 2010 version of the Rules and now the amended

Rules), but regardless whether the parties to this litigation ever agree on that point, the

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Kentucky Supreme Court’s unilateral amendment to the Rules of Kentucky’s Drug Court

(Exhibit G) has rendered the claims asserted in Plaintiff’s Complaint entirely moot.

VI. CONCLUSION

For the foregoing reasons, the Plaintiff’s Complaint should be dismissed in its

entirety or summary judgment be granted against Plaintiff, in favor of the Defendants,

with respect to each of Plaintiff’s claims. The Eleventh Amendment bars most of

Plaintiff’s claims, and whichever survive the Eleventh Amendment are likewise barred by

the doctrines of Younger abstention and/or Rooker-Feldman. Furthermore, Plaintiff’s

claims are not ripe, and the injunctive relief she seeks, having been unilaterally provided

by the Kentucky Supreme Court, has rendered her claims moot in any event.

Respectfully submitted, /s/ Douglas L. McSwain Douglas L. McSwain [email protected] Sharon Gold [email protected] Courtney R. Samford [email protected] WYATT, TARRANT & COMBS, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507-1746 859.233.2012 Counsel for Defendants

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served upon the following, through the Court’s ECF System on this the 3rd day of April, 2015:

Ned Pillersdorf [email protected] Pillersdorf, DeRossett & Lane 124 West Court Street Prestonsburg, Kentucky 41653 Counsel for Plaintiff

Mark A. Wohlander [email protected] Caitlin Wohlander [email protected] Wohlander Law Office, PSC P.O. Box 910483 Lexington, Kentucky 40591 Counsel for Plaintiff

/s/ Douglas L. McSwain________ Counsel for Defendants

61324019.4

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MEMORANDUM IN SUPPORT OF MOTION TO …big.assets.huffingtonpost.com/mcswain.pdfPennzoil Co. v. Texaco, Inc., ... MEMORANDUM IN SUPPORT OF MOTION TO DISMISS ... unofficial transcript

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