Asher v. Clay Cnty. Bd. of Educ., Civil Action 6:21-cv-00124-CHB

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
PartiesLondon DENNIS ASHER, et al., Plaintiffs, v. CLAY COUNTY BOARD OF EDUCATION, et al., Defendants.
Decision Date11 February 2022
Docket NumberCivil Action 6:21-cv-00124-CHB

London DENNIS ASHER, et al., Plaintiffs,


Civil Action No. 6:21-cv-00124-CHB

United States District Court, E.D. Kentucky, Southern Division, London

February 11, 2022



This matter is before the Court on a Motion to Dismiss filed by Defendant Clay County Board of Education. [R. 20]. Plaintiffs filed a Response [R. 24], and the Board of Education replied [R. 28]. Also before the Court are Plaintiffs' Emergency Motions for Temporary Injunctive Relief [R. 4; R. 7]. The Defendants, including the Clay County Fiscal Court, filed responses in opposition. [R. 13; R. 14; R. 19; R. 21]. Plaintiffs filed no reply. These matters are ripe for review. For the following reasons, the Court grants the Motion to Dismiss, in part, [R. 20], and denies the Motions for Temporary Injunctive Relief, [R. 4; R. 7].


In April 2008, Defendant Clay County Board of Education (“BOE”)[1] purchased property that included a private cemetery (“Hoskins Cemetery”). [R. 13-1]. This dispute began when the BOE requested permission from local and state authorities, pursuant to K.R.S. § 381.755, to disinter the graves in Hoskins Cemetery and reinter them in different location, citing


safety concerns due to the hillside cemetery's proximity to an elementary school and various athletic complexes. [R. 18, pp. 6-7, ¶¶ 10-15; R. 7-3, pp. 3-5]. In compliance with state law, on May 12, 2021, the BOE first published a notice in the local paper announcing its intentions to relocate the graves. [R. 18, at 7, ¶ 13; R. 7-3; R. 7-4]. At a public meeting of the Fiscal Court, proponents of the relocation and objectors, including representatives of the Plaintiffs, were able to voice their views. [R. 18, p 7, ¶ 15, n. 1]; see also Bill Estep, ‘Emotions are high.' Controversy flares over moving graves from historic KY cemetery, Lexington Herald Leader, (July 09, 2021), 52666678. html#storylink=cpy. [2] On July 12, 2021, the BOE took the next step under state law and filed an application for relocation with the Defendant Clay County Fiscal Court (“Fiscal Court”).[3] [R. 18, p. 7, ¶ 14; R. 7-3, pp. 3-5]. The Fiscal Court approved the BOE's application on July 14, 2021, Id. at 7, ¶ 15, “despite numerous protests and written requests to block the disinterment . . . .” Id.; [R. 1-2]. Plaintiffs, who generally allege that “most of whom have at least one (1) ancestor buried in the Hoskins Cemetery, ” [R. 18, at 3-4, ¶ 3], do not dispute that the BOE and Fiscal Court fully complied with Kentucky law for removal and reinterment of the graves, but they believe “it is not in the best interest of Clay County, KY, to relocate all graves in Hoskins Cemetery.” Id. at 7, ¶¶ 13-15.

Plaintiffs allege the graves in Hoskins Cemetery contain “infants, veterans of war, and Native Americans, ” id. at 7, ¶ 12, including members of the Tribe of the White Top Band of


Native Indians (“White Top”). Id. at 9, ¶ 20. According to Plaintiffs, the White Top are locally recognized as a legitimate indigenous Native American tribe. Id. at 7-8, ¶ 16. Notably, in their Second Amended Complaint Plaintiffs do not explicitly link a particular Plaintiff or Plaintiffs with a particular White Top ancestor buried in the Hoskins Cemetery, though that is the clear implication. That is, they do not specifically allege any particular Plaintiff has a particular, identified White Top ancestor buried in the Hoskins Cemetery. Instead, Plaintiffs claim that some individual Plaintiffs are descendants of the Sizemore family, which featured George Sizemore who “married Elizabeth ‘Annie' Hart. a Cherokee squaw with the Indian name of Aruna . . . ” Id. at 9, ¶ 19. They further allege the “White Top have multiple family members buried in the Hoskins Cemetery.” Id. at 9, ⁋ 20. However, in their original complaint, [R. 1], Plaintiffs attach a list of the individuals buried in the Hoskins Cemetery, denoting which ones have Native American heritage and listing particular Plaintiffs who are descendants of them. [R. 1-1].

Just days after the BOE received its permits to move the graves, Plaintiffs, on July 23, 2021, filed their initial complaint in this Court, naming the Defendants and Manchester Memorial Gardens as defendants and alleging the Defendants' actions violated a hodgepodge of federal and state laws, acts, regulations, codes, and statutes. [R. 1], Four days later, Plaintiffs filed their Emergency Motion for Temporary Injunctive Relief [R. 4], followed by an Amended Emergency Motion for Temporary Injunctive Relief on July 28, 2021 (collectively the “TROs”). [R. 7]. The Court held a telephonic status conference on July 29, 2021, attended by all counsel. [R. 17]. During the conference, counsel for the BOE advised the Court that the BOE had no immediate plans to move the graves, and consequently all parties agreed to maintain the status


quo pending full briefing by the parties on the TROs, or alternatively, full briefing on any dismissal motion filed by Defendants and a ruling by the Court on the same. Id.

Meanwhile, Plaintiffs amended (or attempted to amend) their complaint three times. [R. 16; R. 18; R. 29]. In the First Amended Complaint, filed on July 29, 2021, Plaintiffs removed Manchester Memorial Gardens as a party defendant in the caption (but not the body of the complaint); removed four party plaintiffs; added eight new party plaintiffs; and lastly, added a new count-Count Eight, “Violations of the 14th Amendment “Violations of the 14th Amendment Equal Protection Clause.” [R. 16].

Without seeking leave, Plaintiffs filed their Second Amended Complaint on August 6, 2021, removing six party plaintiffs; adding nine new party plaintiffs; removing Manchester Memorial Gardens as a party defendant from the body of the complaint; and adding Daniel Cameron as a new party defendant in his official capacity as Attorney General of the Commonwealth of Kentucky. [R. 18 (the “Complaint” or “Second Amended Complaint”)]. The Second Amended Complaint contains the following claims: Violations of the Native American Graves Protection and Repatriation Act (Count 1); Violations of the First Amendment of the United States Constitution and the Religious Freedom Restoration Act (Count 2); Violations of the National Historic Preservation Act (Count 3); Violations of Army Regulations (Count 4); Conversion (Count 5); Violations of KRS 171.3801 and 16 U.S. Code Chapter 2 - National Forests (Count 6); “Property Dispute” (Count 7); and Violations of the Equal Protection and Due Process Clauses of the 14th Amendment to the United States Constitution (Count 8). Plaintiffs seek, among other things, an injunction restraining and enjoining all Defendants from “tampering with, damaging, altering, and/or removing any stone, monument, grave (marked or unmarked), from the Cemetery”; court costs, attorney's fees, and other associated costs with bringing this


action; and “any and all other relief this Honorable Court deems just and appropriate.” [R. 18, pp. 22-23].

Undoubtedly thinking the moving target had stilled, on August 12, 2021, the BOE filed the instant Motion to Dismiss and/or Motion for Judgment on the Pleadings addressing Plaintiffs' Second Amended Complaint. [R. 20]. In response, and again without seeking leave, Plaintiffs filed the Third Amended Complaint on August 31, 2021, removing five party plaintiffs; adding twenty-six new party plaintiffs; deleting Count Seven (Property Dispute) and making former Count Eight the “new” Count Seven; and attempting to add an entirely new Count Eight for “Violations of the Kentucky Antiquities Act.” [R. 29]. Lastly, the amendment sought to significantly modify Count Five (Conversion). Id.


The Court first addresses Plaintiffs' multiple attempts to amend their complaint. Federal

Rule of Civil Procedure 15 governs amendments to pleadings, and as applicable here, allows a party to amend its pleading once as a matter of course within twenty-one days after serving it. Fed.R.Civ.P. 15(a)(1)(A). Afterwards, a party can only amend its pleading with either the opposing party's written consent or the court's leave. Fed R. Civ. P. 15(a)(2). Here, Plaintiffs filed their original complaint on July 23, 2021 and exercised their right to amend as a matter of course by filing their First Amended Complaint on July 29, 2021. Fed.R.Civ.P. 15(a)(1)(A). [R. 16]. Conversely, the Second and Third Amended Complaints required the opposing party's consent or the Court's leave-neither of which was sought or provided.[4]


Federal Rule of Civil Procedure 15(a)(2) states courts “should freely give leave when justice so requires.” When determining whether to grant leave, federal district courts consider whether there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). “One of the ‘most important factor[s]' to consider is ‘the possibility of prejudice to the opposing party.'” N. Am. Cath. Educ. Programming Found., Inc. v. Womble, Carlyle, Sandridge & Rice, PLLC, 887 F.Supp.2d 78, 83 (D.D.C. 2012); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-331 (1971) (“[I]n deciding whether to permit such an amendment, the trial court was required to take into account any prejudice [opposing party] would have suffered as a result.”). Balancing these factors, the Court will grant leave with regard to the Second Amended Complaint. Pursuant to Foman, no undue delay, unfair prejudice, or unfair surprise arises because the amendment was filed early in the litigation and largely recites the same...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT