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Big Cats of Serenity Springs, Inc. v. Vilsack

United States District Court, D. Colorado

March 25, 2015

BIG CATS OF SERENITY SPRINGS, INC., doing business as Serenity Springs Wildlife Center, NICK SCULAC, JULIE WALKER, and JULES INVESTMENT, INC., Plaintiffs,
v.
THOMAS J. VILSACK, in his official capacity as Secretary of Agriculture, CINDY RHODES, TRACY THOMPSON, and OTHER UNNAMED USDA EMPLOYEES, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Big Cats of Serenity Springs, Inc., doing business as Serenity Springs Wildlife Center, Nick Sculac, Julie Walker, Jules Investment, Inc., Plaintiffs: Duston K. Barton, Leonard H. MacPhee, Perkins Coie LLP-Denver, Denver, CO.

For Thomas J. Vilsack, in his official capacity as Secretary of Agriculture, Cindy Rhodes, Tracy Thompson, and other unnamed USDA employees, Defendants: Juan Gonzalo Villasenor, U.S. Attorney's Office-Denver, Denver, CO.

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ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Robert E. Blackburn, United States District Judge.

The matters before me are (1) the Recommendation of United States Magistrate Judge [#40],[1] filed January 5, 2015; and (2) defendants' corresponding Objections to the Recommendation of U.S. Magistrate Judge [#41], filed January 20, 2015. I overrule the objections, adopt the recommendation, and deny the apposite motion to dismiss in all but the single particular suggested by the magistrate judge.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, the objections, and the applicable caselaw. The recommendation is exhaustively detailed and cogently reasoned. So thoroughly has the magistrate judge considered and analyzed the issues raised by and inherent to the motion that any further exegesis on my part would constitute little more than a festooned reiteration of her excellent work.

Like the arguments of their motion, defendants' objections generally attempt to characterize plaintiffs' claims regarding defendants' conduct of the search of their premises as challenges to the inspection report generated as a result thereof. Plaintiffs' claims are not so described or delimited, however, and it is their allegations that control in resolving the present motion. The magistrate judge has explained and explored the relevant distinction between a challenge to the statute itself -- which implicates the framework of New York v. Burger, 482 U.S. 691');">482 U.S. 691, 107 S.Ct. 2636');">107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) -- and a challenge to an officer's conduct under the statute -- which does not. I find her analysis persuasive. Moreover, I concur with her conclusion that a Bivens remedy is cognizable on the facts alleged here, as well as her recommendation that plaintiffs may assert, as an alternative theory, a violation of section 1983 premised on the federal officials alleged enlistment of state law enforcement officers in their attempt

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to forcibly enter plaintiffs' premises without a warrant.[2]

Thus, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#40], filed January 5, 2015 is approved and adopted as an order of this court;

2. That the objections stated in defendants' Objections to the Recommendation of U.S. Magistrate Judge [#41], filed January 20, 2015, are overruled;

3. That Defendants' Motion To Dismiss [#23], filed April 21, 2014, is granted in part and denied in part, as follows:

a. That the motion is granted insofar as it seeks dismissal of the declaratory judgment claims to the extent they are asserted by the non-licensee plaintiffs, who lack standing to pursue such claims, and those claims are dismissed with prejudice; and
b. That in all other respects, the motion is denied; and

4. That at the time judgment enters, judgment with prejudice shall enter on behalf of defendants against plaintiffs Nick Sculac, Julie Walker, and Jules Investment, Inc., as to the Third and Fourth Claims for Relief asserted in the Complaint for Damages, Declaratory Judgment, and Other Relief [#1], filed December 4, 2013.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kristen L. Mix, United States Magistrate Judge.

This matter is before the Court on Defendants'

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Motion to Dismiss [#23][1] (the " Motion" ). Plaintiffs filed a Response to the Motion [#28] and Defendants filed a Reply [#29] in further support of the Motion. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to the undersigned for a recommendation regarding disposition [#24]. On October 8, 2014, the Court heard oral argument regarding the Motion. See generally Transcript [#39]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#23] be GRANTED in part and DENIED in part.

I. Background

A. Allegations

On December 4, 2013, Plaintiffs initiated this lawsuit by filing their Complaint [#1]. On February 19, 2014, they filed their First Amended Complaint [#15], in which they assert four claims against Defendants relating to a May 7, 2013 United States Department of Agriculture (" USDA" ) inspection of Plaintiff Big Cats of Serenity Springs, Inc. (" Big Cats" ). Am. Compl. [#15] ¶ ¶ 2, 22-45. First, Plaintiffs bring a Bivens[2] action against Defendants Rhodes, Thompson, and an unknown USDA inspector (the " Inspector Defendants" ) for allegedly violating Plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures. Id. ¶ ¶ 46-49. Second, Plaintiffs bring a claim under 42 U.S.C. § 1983 against the Inspector Defendants " because they acted under color of state law when they induced the deputies to cut the chains and enter the premises . . . ." Id. ¶ ¶ 50-54. Third, Plaintiffs seek a declaratory judgment " declaring that [Defendant] Thompson inappropriately overrode the medical advice of [Plaintiff] Big Cats' veterinarians and declaring that, in the future, the USDA cannot force [Plaintiff] Sculac to choose between following the medical advice of his veterinarians and the mandates of a USDA inspector." Id. ¶ ¶ 55-60. Finally, Plaintiffs " seek a declaratory judgment that the USDA must follow its own regulations and that it cannot conduct a warrantless search of the Big Cats facility outside of 'normal business hours' solely because an inspector 'want[s] to' or because an inspector subjectively 'believe[s] [it] necessary to determine the welfare status of the animals . . . .'" Id. ¶ ¶ 61-72. In addition to declaratory relief, Plaintiffs seek compensatory and punitive damages, costs, expenses, and prejudgment interest. Id. ¶ ¶ 73-77.

In support of their claims, Plaintiffs allege that on May 6, 2013, Defendants Rhodes and Thompson visited Big Cats " to conduct a follow-up inspection of Maverick, an injured tiger cub." Id. ¶ 25. Plaintiffs maintain that Maverick received treatment from two veterinarians but that, " [d]espite this medical treatment . . . [Defendants] Rhodes and Thompson cited [Plaintiff] Sculac on May 6 for failing to [take appropriate methods to relieve Mavericks's and Baxter's[3]] pain and distress . . .'[.]" Id.

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¶ ¶ 25-26. Plaintiffs aver that the inspection report relating to the May 6, 2013 inspection " required that the cubs be evaluated no later than 8:00 the following morning (May 7, 2013)." Id. ¶ 27. According to Plaintiffs, Plaintiff Sculac asked Defendant Thompson if Maverick and Baxter could be seen by one of their veterinarians on May 8, 2013, when they were already scheduled for a follow-up appointment. Id. Plaintiffs allege that Defendant Thompson refused this request. Id. ¶ ¶ 27, 31.

Plaintiffs further allege that both of Maverick and Baxter's treating veterinarians did not want them transported, but because of the May 6, 2013 inspection report's requirement that the cubs be evaluated by 8:00 a.m. on May 7, 2013, Plaintiff Sculac made arrangements for Dr. Marsden to evaluate the cubs early in the morning of May 7, 2013. Id. ¶ 30. Plaintiffs aver that on May 7, 2013, Plaintiff Sculac arrived at Big Cats at approximately 6:00 a.m. to capture and load the cubs so he could take them to be evaluated by Dr. Marsden. Id. ¶ 32. Plaintiffs maintain that Plaintiff Sculac arrived at Dr. Marsden's clinic at approximately 7:00 a.m. and assisted her with her evaluation of the tiger cubs. Id. According to Plaintiffs, Plaintiff Sculac went to his truck at approximately 10:00 a.m. and heard his cell phone ringing. Id. " The call was from Devon Devries, an employee at Big Cats [who] indicated that USDA inspectors and armed police officers were inside the facility demanding to know where Maverick and Baxter were." Id.

Plaintiffs allege that the Inspector Defendants arrived at Big Cats on May 7, 2013 at approximately 8:00 a.m. Id. ¶ 33. They maintain that the outer gate was locked and that near the gate were two signs indicating " NO TRESPASSING" AND " TRESPASSERS WILL BE PROSECUTED." Id. ¶ 34. Plaintiffs aver that Ms. Devries was at the facility but did not see or hear the Inspector Defendants arrive. Id. ¶ 35.

Plaintiffs further allege that at approximately 8:45 a.m., Defendant Thompson called the El Paso County Sheriff's Office " and requested 'urgent' assistance" at the facility. Id. ¶ 36. Plaintiffs aver that when the two deputies arrived at Big Cats, Defendants Thompson and Rhodes " falsely told the deputies: (a)[ ] that they (the inspectors) had obtained 'court orders' to seize two animal cubs at the facility . . . ; (b)[ ] that [Plaintiff] Sculac was 'refusing to allow them access to the facility; ' (c)[ ] that their court order allowed them" to enter the property and seize the animals; (d) " that they were unsure to what lengths someone at the facility would go to keep the animals; and (e)[ ] that they (the inspectors) were concerned that someone could get hurt if one of the cats were let loose." Id. ¶ 37. Plaintiffs maintain that " there are no such court orders" and that " the inspectors lied to the police officers to induce them to cut the chains and enter the facility." Id. ¶ 38. As a result, Plaintiff's aver that " the deputies cut the chains on the external gate, and the inspectors and deputies entered the locked, private facility." Id. ¶ 39. Plaintiffs allege that the Inspector Defendants and the deputies parked their cars inside the facility and the " deputies cut the chains on [the] second gate" that had a " prominent sign" stating " DO NOT ENTER WITHOUT AN EMPLOYEE." Id. ¶ ¶ 39-40.

According to Plaintiffs, the Inspector Defendants and deputies " walked through a significant portion of the facility before arriving where Maverick and Baxter were housed." Id. ¶ 40. Plaintiffs allege that the Inspector Defendants " eventually saw Ms. Devries and approached her demanding . . .

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to know where Maverick and Baxter were." Id. ¶ 41. Plaintiffs aver that Ms. Devries " was shocked and alarmed to suddenly see three USDA agents and two heavily armed police officers appear inside the locked, private facility" and told them that the tiger cubs " were with Mr. Sculac at the veterinarian clinic." Id. Plaintiffs allege the Ms. Devries called Plaintiff Sculac who confirmed that he was at Dr. Marden's clinic and that not long after the telephone call, " the USDA agents and then the police officers left . . . ." Id. ¶ ¶ 42-43. Plaintiffs maintain that " [a]t no time did any of the Plaintiffs give any of the Defendants permission to enter the property on May 7, 2013." Id. ¶ 45.

B. The Motion

Defendants filed the Motion in response to the First Amended Complaint. In it, they seek dismissal of all four claims asserted by Plaintiffs. Regarding Plaintiffs' first claim, Defendants argue that " Plaintiffs lack[ ] a Bivens remedy" for their Fourth Amendment claim. Motion [#23] at 7. Defendants further argue that the Court would have to create a Bivens remedy in this instance and that the Court should not do so because the " AWA[4] and its implementing regulations provide an alternative, existing process to protect the right of an exhibitor like Big Cats or Sculac -- a process that includes notice, the opportunity to be heard before the USDA, and the right to pursue judicial review of an adverse decision." Id. at 8-9. In the alternative, Defendants argue that even if a Bivens remedy exists for Plaintiff's Fourth Amendment claim, the Inspector Defendants are entitled to qualified immunity. Motion [#23] at 11-21. Regarding Plaintiff's second claim, brought pursuant to 42 U.S.C. § 1983, Defendants argue that the Inspector Defendants were not acting under color of state law, but rather federal law, and that this claim therefore fails as a matter of law. Id. at 24-25. Finally, with regard to Plaintiffs' declaratory judgment claims, Defendants argue that those claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) because Plaintiffs failed to exhaust their administrative remedies. Id. at 21-24. In the alternative, Defendants argue that Plaintiffs " lack standing to pursue these claims because they haven't suffered an injury in fact that is concrete, imminent, or redressable." Id. at 23 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

In their Response, Plaintiffs argue that a Bivens remedy exists for their Fourth Amendment claim. Response [#28] at 6-8. Plaintiffs further maintain that, " while this Court is not faced with the question of whether it should create a 'new' Bivens remedy," the AWA regulations do not provide a mechanism through which they can bring their Fourth Amendment claim. Id. at 8. Plaintiffs further argue that the Inspector Defendants are not entitled to qualified immunity. Id. at 8-19. Regarding Plaintiffs' § 1983 claim, they argue that the Inspector Defendants acted under color of state law because they conscripted local law enforcement to cut the locks at the facility in order to gain entrance to Big Cats. Id. at 24-26. Finally, regarding the claims seeking declaratory judgment, Plaintiffs argue that the Court has jurisdiction because they seek to challenge the application of the regulations as written and do not seek amendment of the regulations themselves. Id. at 19-21. Plaintiffs further argue that they have standing to assert their third and fourth claims because the relief sought would affect the behavior of the parties going forward. Id. at 21-24.

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In their Reply, Defendants maintain their position that the Court would have to create a new Bivens remedy and argue that the AWA provides " a mechanism for [P]laintiffs to seek judicial review of the May 7, 2013, inspection report" and that " the APA[5]. . . permits judicial review of a final agency action that is 'contrary to constitutional right, power, privilege, or immunity.'" Reply [#29] at 2. Defendants also revisit their argument that they are entitled to qualified immunity. Id. at 2-9. Regarding Plaintiffs' declaratory judgment claims, Defendants argue that

[P]laintiffs confirm that they lack standing to pursue claims three and four. It is now clear that they seek, solely based on the events of May 7, equitable relief " in the future" . [citation omitted]. Yet, the amended complaint has no allegations of an immediate threat that inspectors Rhodes or Thompson will continue, after May 7, to allegedly violate AWA regulations or the Constitution.

Id. at 10. Finally, regarding the § 1983 claim, Defendants maintain that this statute does not apply to federal officials. Id. at 10. Defendants further argue that the claim should be stricken as redundant. Id.

II. Standard of Review

A. Federal Rule of Civil Procedure 12(b)(1)

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because " federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). " The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court " may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court " has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on ...


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