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

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1 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 1 of 35 - Page ID#: 39 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE CASE NO. 7:15-cv 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 dmcswain@wyattfirm.com Sharon Gold sgold@wyattfirm.com Courtney R. Samford csamford@wyattfirm.com WYATT, TARRANT & COMBS, LLP 250 West Main Street, Suite 1600 Lexington, KY Counsel for Defendants

2 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 2 of 35 - Page ID#: 40 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 The judicial proceeding that is the subject of Plaintiff s Complaint is ongoing in state court The state court proceeding against Plaintiff implicates important state interests 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 i

3 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 3 of 35 - Page ID#: 41 CASES: TABLE OF AUTHORITIES Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) 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, (1986)...13 Armstrong, et al. v. Exceptional Child Center, Inc., et al, U.S., Slip Op. No 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 , *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 , 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, , (2005)...23 Faller v. Harris, No. CIV.A.1:06CV J, 2007 WL , at *5 (W.D. Ky. Aug. 23, 2007)...20 ii

4 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 4 of 35 - Page ID#: 42 Fieger v. Cox, 524 F.3d 770, 775 (6th Cir. 2008) 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 GNS, 2015 WL , (W.D. Ky. Mar. 18, 2015)...24 Marks v. Tennessee, 554 F.3d 619, (6 th Cir. 2009)...24 Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass n, 457 U.S. 423, 432, 102 S.Ct (1982)...18 Miller v. AOC, 3:01-CV-339-S, 2001 WL , at *1 (W.D. Ky. Sept. 11, 2001) 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 , 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 , at *1-3 (S.D. Ohio Aug. 8, 2013)...24 iii

5 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 5 of 35 - Page ID#: 43 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, (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) Will v. Mich. Dept. of State Police, 491 U.S. 58, (1989)...15, 17 Younger v. Harris, 401 U.S. 37 (1971)...9, 18 FEDERAL STATUTES: 28 U.S.C. 1257(a) U.S.C , 15 KENTUCKY CONSTITUTION AND STATUTES Ky. Const. 27, 109, 100(5)(b)...14 K.R.S. 27A FEDERAL RULES: F.R.Civ.P. 12(b)(1), 12(b)(6), 12(d) and F.R.Civ.P. 19(a)(1)(A)...27 STATE COURT RULES: RCr 4.00(e)... Ex. B RCr Ex. B RCr Ex. B RCr Ex. B RCr Ex. B RCr Ex. B RCr Ex. B RCr Ex. B RCr iv

6 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 6 of 35 - Page ID#: 44 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE CASE NO. 7:15-cv ART-EBA ELECTRONICALLY FILED 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,

7 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 7 of 35 - Page ID#: 45 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). 2

8 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 8 of 35 - Page ID#: 46 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

9 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 9 of 35 - Page ID#: 47 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, (See Exhibit C). 4

10 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 10 of 35 - Page ID#: 48 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

11 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 11 of 35 - Page ID#: 49 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

12 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 12 of 35 - Page ID#: 50 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 postconviction 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

13 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 13 of 35 - Page ID#: 51 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, (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

14 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 14 of 35 - Page ID#: 52 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 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

15 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 15 of 35 - Page ID#: 53 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

16 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 16 of 35 - Page ID#: 54 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, (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

17 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 17 of 35 - Page ID#: 55 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 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

18 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 18 of 35 - Page ID#: 56 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, (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. 13

19 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 19 of 35 - Page ID#: 57 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 Miller v. AOC, 3:01-CV-339-S, 2001 WL , at *1 (W.D. Ky. Sept. 11, 2001) (unpub.); Brown v. Univers. of Ky. Comprehensive Assessment & Training Servs., 12-CV-123-KSF, 2013 WL , *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

20 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 20 of 35 - Page ID#: 58 sovereign immunity); see generally Will v. Mich. Dept. of State Police, 491 U.S. 58, (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 farreaching 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). 15

21 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 21 of 35 - Page ID#: 59 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 (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 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 (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

22 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 22 of 35 - Page ID#: 60 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, (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. 17

23 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 23 of 35 - Page ID#: 61 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 (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 (1982); Fieger v. Cox,

24 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 24 of 35 - Page ID#: 62 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 , 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

25 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 25 of 35 - Page ID#: 63 decline to interfere ); Faller v. Harris, No. CIV.A.1:06CV J, 2007 WL , 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 postconviction 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 20

26 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 26 of 35 - Page ID#: 64 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., 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). 21

27 Case: 7:15-cv ART-EBA Doc #: 4-1 Filed: 04/03/15 Page: 27 of 35 - Page ID#: 65 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 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