HOUSTON WILSON, Jr. v. ELLIOTT COUNTY, KENTUCKY, CHARLES PENNINGTON, Individually

The Honorable Leon Jordan, United States District Judge for the Eastern District of*
Tennessee, sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0716n.06
Filed: October 4, 2006
No. 05-6015
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HOUSTON WILSON, Jr.,
Plaintiff-Appellant,
v.
ELLIOTT COUNTY, KENTUCKY, CHARLES
PENNINGTON, Individually and as Elliott County
Judge Executive, and ISHMEL FANNIN.
Individually and as Elliott County Road Foreman,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY
Before: SILER and ROGERS, Circuit Judges; JORDAN, District Judge.*
PER CURIAM. Plaintiff Houston Wilson, Jr., appeals the grant of summary judgment
dismissing his claims under 42 U.S.C. § 1983 against Defendants in their official and individual
capacities on the basis of sovereign immunity. Because Wilson failed to utilize Kentucky’s reverse
condemnation procedures or demonstrate that they were inadequate or nonexistent, his claims for
unlawful taking of property without just compensation are not ripe for federal court review and we
therefore affirm their dismissal without prejudice under Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 191-95 (1985). Because local

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governments are not immune from federal suit under 42 U.S.C. § 1983, we reverse the district court
as to the liability of the County and its officers in their official capacities, and we affirm the
dismissal of the case against the defendants in their individual capacities.
I.
Wilson owned a tract of land in Elliott County, but he never lived on the property or made
any substantial improvements to it. In March 2000, individual Defendants Charles Pennington, as
Elliott County Judge Executive, and Ishmel Fannin, as Elliott County Road Foreman, entered onto
the land for the purpose of maintaining a county road and in the process cleared rocks and generally
altered the grounds and character of that part of the property. When Wilson attempted to enclose and
gate the area in order to protect his property, Defendants tore down the gate and took whatever locks
and chains had been used to secure it.
In October 2000, Defendants instituted criminal proceedings against Wilson for obstructing
the development of the road under Ky. Rev. Stat. § 525.140, “Obstructing a Highway or Other Public
Passage.” Wilson later filed a declaratory judgment action in Elliott Circuit Court seeking a
determination of his rights and injunctive relief concerning the road.
The Kentucky circuit court found for Wilson, holding that the road did not cross his property,
but, rather, it ran along the boundary of the property. Furthermore, the court found that although a
road previously maintained by the County could become a County road, no road had been maintained
by the County within the statutory period under KY. REV. STAT. § 178.116, and that there were no
easements or covenants running with the land. The County voluntarily dismissed the criminal action.

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Wilson instituted the present action in the district court in 2004. Therein, he alleged a
violation of his Fourth Amendment rights for the warrantless taking of his personal property (Count
I) and a violation of his Fourth and Fifth Amendment rights for the taking of his real property
without due process and without just compensation (Counts II and III) under 42 U.S.C. § 1983. The
remainder of the counts were state law claims.
The district court dismissed the federal claims on the basis that all Defendants were protected
by absolute and qualified sovereign immunity and dismissed the state claims without prejudice.
Wilson appealed on the bases that the district court erred in prohibiting him from deposing the circuit
judge, and that immunity was incorrectly found. Defendants contend that even if the district court
was incorrect to dismiss the actions on sovereign immunity, Counts II and III were not ripe.
II.
A.
We address first Defendants’ ripeness challenge. In order to have federal standing, a plaintiff
alleging a taking without just compensation must first exhaust state procedures for obtaining
compensation, or demonstrate that no “reasonable, certain and adequate procedure” exists for doing
so. See Williamson, 473 U.S. at 191-95 (“[I]f a State provides an adequate procedure for seeking
just compensation, the property owner cannot claim a violation of the Just Compensation Clause
until it has used the procedure and been denied just compensation.”). Wilson did not exhaust his
state remedies and does not argue that Kentucky lacks a reasonable and adequate procedure for
obtaining just compensation. Therefore, we affirm the dismissal, without prejudice, of Counts II and
III.

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B.
Wilson contends that, during the discovery process, he should have been allowed to take the
deposition of the circuit judge in order to clarify the impact of the declaratory order on the instant
case. The judge’s testimony is irrelevant because it has no bearing on any of the issues raised. The
order speaks for itself, and, in any event, it and the findings were issued after any of the alleged
actions by the Defendants occurred. Thus, Wilson fails to prove any abuse of discretion on the part
of the district court for refusing to allow the deposition.
C.
Defendants claim they are protected by sovereign immunity. We review questions of
immunity de novo. See Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005).
1. Sovereign Immunity for Elliott County
We treat the individual defendants in their official capacities and Elliott County as one in the
same. See Leach v. Shelby County Sheriff, 891 F.2d 1241, 1244 (6th Cir. 1989). The district court
dismissed the federal claims against Elliott County on the basis that “county governments are
cloaked in sovereign immunity.” Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky. 2003).
While Elliott County may be immune from suit under Kentucky law, it is not thereby immune from
federal suits. “Conduct by persons acting under color of state law which is wrongful under 42
U.S.C. § 1983 . . . cannot be immunized by state law.” Martinez v. California, 444 U.S. 277, 284
(1980). The Supreme Court has “repeatedly refused to extend sovereign immunity to counties ” even
where “such entities exercise a ‘slice of state power.’” Northern Ins. Co., v. Chatham County, 126
S.Ct. 1689,1693 (2006) (citations omitted). Elliott County makes no argument that it is immune

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under any of the exceptions to the above rule. Therefore, we reverse the district court as to Elliott
County and as to Pennington and Fannin in their official capacities.
2. Qualified Immunity for Individual Defendants
The district court held that Fannin and Pennington were entitled to qualified immunity in
their individual capacities because they “had credible, good faith reasons to believe that the road in
question did, indeed, belong to the county and that, thus, they were charged with the maintenance
of same . . . .” To evaluate qualified immunity, a court must follow the sequential analysis
prescribed in Saucier v. Katz, 533 U.S. 194, 201-203 (2001). The threshold question is whether,
“[t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show the
officer’s conduct violated a constitutional right.” Id. at 20. Then, “if a violation could be made out
on a favorable view of the parties’ submissions, the next sequential step is to ask whether the right
was clearly established.” Id.
Here, Wilson has failed to prove that Pennington and Fannin were not protected by qualified
immunity. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (“Once the qualified
immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not
entitled to qualified immunity.”). There is little debate that what Wilson alleges was a violation of
his Fourth Amendment right against warrantless seizures. However, a right is not “clearly
established” merely by virtue of its having been stated in the abstract. See Anderson v. Creighton,
483 U.S. 635, 639 (1987). Rather, the inquiry must take into account the applicable context and
whether “the contours of the right [are] sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Saucier, 533 U.S. at 202. Wilson failed to offer any

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evidence suggesting that it was objectively unreasonable to believe that there was a county road
through Wilson’s property and that it was their official responsibility to maintain it. In fact, the
Defendants’ belief was supported by documentation and affidavits by a postal worker and a deputy
sheriff. Wilson offers evidence from a surveyor and an affidavit from another person that a road
used to run along the boundary of Wilson’s property. Neither is relevant to whether Pennington and
Fannin reasonably believed there was a road through Wilson’s property. Under these circumstances,
Wilson’s right to have his gate on that part of the land was murky at best, and we cannot conclude
that Fannin and Pennington acted unreasonably.
III.
For the forgoing reasons, we affirm the district court’s dismissal of Counts II and III;
however, we do so on alternate grounds of lack of ripeness and we hold that dismissal should be
without prejudice. We affirm that Pennington and Fannin have qualified immunity individually, but
we reverse and remand for further proceedings against Elliott County and Pennington and Fannin
in their official capacities.
AFFIRMED in part and REVERSED and REMANDED in part.

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