Maryann Bullock v. City of Covington

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0566n.06
No. 16-6802
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARYANN BULLOCK, ) FILED
) Oct 06, 2017
DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CITY OF COVINGTON; JAMES C. EDIGER, In his ) COURT FOR THE EASTERN
individual capacity, ) DISTRICT OF KENTUCKY
)
Defendants-Appellees. )
)
Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Maryann Bullock appeals the dismissal of her claims
against the City of Covington and its Code Enforcement Officer James Ediger. With one minor
exception, we affirm.
Maryann Bullock lives at 923 Cherry Street. The street in front of her home has always
been unpaved, and since the 1990s has been mostly inaccessible to motor vehicles. Although
Bullock has occasionally asked the City to pave or otherwise improve her stretch of Cherry
Street, the City has refused. Bullock accesses her driveway through a paved alley in the back,
which the City resufaced in 2014.
Bullock brought this lawsuit in April 2016, seeking a declaratory judgment that Cherry
Street is a public street. Bullock also asserted two claims under 42 U.S.C. § 1983, asserting that
the City deprived her of property and denied her equal protection of the law in violation of the
No. 16-6802
Bullock v. City of Covington, et al.
Fourteenth Amendment. She also asserted a state-law claim asserting that the City’s failure to
pave Cherry Street created a public nuisance and a tort claim against James Ediger, a Covington
Code Enforcement Officer.
Although Bullock was initially represented by attorneys J. Christian Dennery and Maria
Lagdameo, the district court disqualified Dennery because he had previously represented the
City on matters related to Bullock’s claims. The court also disqualified Lagdameo for reasons
not at issue here. Bullock then hired a new lawyer.
The City and Ediger filed motions to dismiss for failure to state a claim, which the district
court granted except as to Bullock’s tort claim against Ediger. As to that claim, the district court
declined to exercise supplemental jurisdiction. This appeal followed.
Bullock first argues that the district court should not have disqualified Dennery. We
review that decision for an abuse of discretion. United States v. Brock, 501 F.3d 762, 771 (6th
Cir. 2007). The district court disqualified Dennery under a Kentucky Rule of Professional
Conduct that prohibits a lawyer from “represent[ing] a client in connection with a matter in
which the lawyer participated personally and substantially as a public officer or employee[.]”
SCR 3.130(1.11)(a)(2). Specifically, the court found that Dennery, a former City lawyer, had
worked on nuisance complaints and various issues related to the City’s streets. Bullock now
asserts that the Kentucky rule does not bar Dennery’s representation because none of Dennery’s
work for the City involved her personally. But Bullock’s own complaint includes facts drawn
from the various matters on which Dennery represented the City. Hence the district court did not
abuse its discretion when it disqualified him.
Bullock next challenges the court’s dismissal of her claims under 42 U.S.C. § 1983,
which the court held were time-barred. We review that decision de novo. See Moody v. Mich.
-2-
No. 16-6802
Bullock v. City of Covington, et al.
Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017). Kentucky’s one-year statute of
limitations applies to Bullock’s § 1983 claims. See Bonner v. Perry, 564 F.3d 424, 430-31 (6th
Cir. 2009). Here, per Bullock’s own complaint, all of her relevant injuries were caused by
discrete acts, most recently a 2014 decision not to pave the street in front of her house. That
decision came more than one year before Bullock filed suit. Her § 1983 claims are therefore
untimely.
Bullock also challenges the dismissal of her nuisance claim, as to which the district court
held the City was entitled to state-law immunity. Kentucky law affords local governments
immunity from liability for claims “arising from the exercise of . . . legislative or quasi-
legislative authority[.]” Ky. Rev. Stat. § 65.2003(3). The district court held—and Bullock does
not dispute here—that the City exercised legislative authority when it decided which roads to
pave. Bullock now argues that Kentucky law waives municipal immunity for takings claims, and
that her nuisance claim ought to be construed as a takings claim. But Bullock did not present
that argument to the district court. Thus the argument is forfeited. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 552 (6th Cir. 2008).
Bullock also challenges the court’s dismissal of her declaratory-judgment action, which
we review for an abuse of discretion. W. World Ins. Co. v. Hoey, 773 F.3d 755, 758 (6th Cir.
2014). In exercising that discretion, the district court may consider, among other things, whether
the requested judgment would be an appropriate use of judicial power. See id at 759. Here, the
district court determined that Bullock’s claim for declaratory relief essentially asked the court to
act as a city road commissioner. Suffice it to say that the court’s refusal to do so was not an
abuse of discretion.
-3-
No. 16-6802
Bullock v. City of Covington, et al.
That leaves Bullock’s tort claim against Ediger. The district court chose not to exercise
supplemental jurisdiction over that claim, see 28 U.S.C. § 1367, and instead dismissed it with
prejudice. Normally, when a court declines to exercise supplemental jurisdiction, the court
dismisses the claims without prejudice. See, e.g., Grubbs v. Sheakley Grp., Inc., 807 F.3d 785,
792 (6th Cir. 2015); Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 475 (6th Cir.
2015). We see no reason to deviate from that practice here. We therefore vacate the district
court’s judgment as to that claim so that the court can dismiss it without prejudice.
* * *
The district court’s judgment is affirmed, except that we instruct the court to dismiss
Bullock’s claim against Ediger without prejudice.
-4-