698 F. App'x 305
6th Cir.
2017

Mаryann BULLOCK, Plaintiff-Appellant, v. CITY OF COVINGTON; James C. Ediger, In his individual capacity, Defendants-Appellees.

No. 16-6802

United States Court of Appeals, Sixth Circuit.

October 6, 2017

697 Fed. Appx. 305

The district court did not unreasonably weigh the need to protect the victim in this case, particularly when there is the potential for continuing harm due to distribution of the pictures and Cooper‘s claim that he victimized his оwn child unknowingly in a drug-and-alcohol-induced blackout. Moreover, as the district court explained, the victim‘s protection requires special cоnsideration for the purpose of general deterrence: “The victims in these cases are, for the most part, defenseless, can‘t protect themselves. They have to rely upon family members to do that. And in this case the family member that was responsible failed. He was the perpetrator, not the protector.”

Nor did the district court understate Cooper‘s substance-abuse problem. The district court ordered that Cooper receive substantial treatment and counseling to address the issue and granted a significant downward variance. However, as the district court noted, Cooрer attempted to hide his criminal conduct behind addiction. This was clear at trial. The government presented to the jury recorded interviews of Cooper‘s admitting to taking the photographs of his daughter: “I understand your-all‘s evidence, and I‘m not disputing that in any way, form, or fashion. . . . Did I blackout and do something stupid that I shouldn‘t have, it‘s quite possible. Apparently I did.” In his trial testimony, Cooper denied engaging in the criminal conduct and stated that, due to his drinking and drug use, he did not remember the interviews. Finally, the district court did not overlook Cooper‘s life expectancy and chance of recidivism upon release. Cooper did not present these points at sentencing and raised no objection that would prompt the court to consider these issues. See United States v. White, 617 Fed. Appx. 545, 549-50 (6th Cir. 2015).

The district сourt did not unreasonably weigh any pertinent factor, and Cooper has failed to rebut the presumption of reasonableness accordеd to his below-Guidelines sentence. Cooper‘s argument ultimately boils down to an assertion that the district court should have balanced the § 3553(a) factors differently. It is not our place to rebalance the § 3553(a) factors аnd to determine whether we would impose the same sentence. See United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008). Even if certain “considerations might support a lower sentence, they ‍‌​‌‌​​​‌​​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​​​‍dо not compel one, and that is all we have license to consider.” United States v. Overmyer, 663 F.3d 862, 864 (6th Cir. 2011). Therefore, the district court did not abuse its discretion by sentencing Cooper to thirty years’ imprisonment and we AFFIRM.

Anthony James Bucher, Law Office, Covington, KY, for Plaintiff-Appellant.

Randy J. Blankenship, Law Offices, Erlanger, KY, Michael P. Bartlett, City of Covington Legal Department, Frank Edward Warnock, City of Covington, Mary Suzanne Cassidy, Ohara, Taylor, Sloan & Cassidy, Covington, KY, for Defendants-Appellees.

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge.

Maryann Bullock appeals the dismissаl 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 Streеt. 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 oсcasionally ‍‌​‌‌​​​‌​​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​​​‍asked the City to pave or otherwise improve her stretch of Cherry Street, the City has refused. Bullock accesses her driveway through а paved alley in the back, which the City resurfaced in 2014.

Bullock brought this lawsuit in April 2016, seeking a declaratory judgment that Cherry Street is a public street. Bullock alsо 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 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 Lagdameо, 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 сourt 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 distriсt 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 whiсh 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 thе 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 dismissаl 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. Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017). Kentucky‘s one-year statute of limitations apрlies 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 challengеs 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 legislаtive 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 considеr, 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 Bullоck‘s claim for declaratory relief essentially asked the court to act as a city road commissioner. Suffice it to say that the court‘s refusаl to do so was not an abuse of discretion.

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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