                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.


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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.




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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.




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