                       NOT RECOMMENDED FOR PUBLICATION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.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR
                                                      )    THE EASTERN DISTRICT OF
ELLIOTT COUNTY, KENTUCKY, CHARLES                     )    KENTUCKY
PENNINGTON, Individually and as Elliott County        )
Judge Executive, and ISHMEL FANNIN.                   )
Individually and as Elliott County Road Foreman,      )

       Defendants-Appellees.



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


       *
        The Honorable Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 05-6015
Wilson v. Elliott Cty. et al.

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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No. 05-6015
Wilson v. Elliott Cty. et al.

        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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Wilson v. Elliott Cty. et al.

                                                  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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Wilson v. Elliott Cty. et al.

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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Wilson v. Elliott Cty. et al.

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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