Big Cats of Serenity Springs, Inc. v. Rhodes

• Citation: 843 F.3d 853
• Decision Date: 12 December 2016
• Docket Number: No. 15-1174,15-1174
• Parties: Big Cats of Serenity Springs, Inc., doing business as Serenity Springs Wildlife Center; Nick Sculac; and Jules Investment, Inc., Plaintiffs–Appellees, and Julie Walker, Plaintiff, v. Cindy Rhodes; and Tracy Thompson, Defendants–Appellants. and Thomas J. Vilsack, in his official capacity as Secretary of Agriculture; and Other Unnamed United States Department of Agriculture Employees, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

843 F.3d 853

Big Cats of Serenity Springs, Inc., doing business as Serenity Springs Wildlife Center; Nick Sculac; and Jules Investment, Inc., Plaintiffs–Appellees,andJulie Walker, Plaintiff,

v. Cindy Rhodes; and Tracy Thompson, Defendants–Appellants.andThomas J. Vilsack, in his official capacity as Secretary of Agriculture; and Other Unnamed United States Department of Agriculture Employees, Defendants.

No. 15-1174

United States Court of Appeals, Tenth Circuit.

December 12, 2016

Edward Himmelfarb, Appellate Staff Attorney, Civil Division (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States Attorney for the District of Colorado, and Barbara L. Herwig, Appellate Staff Attorney, Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, for Appellants.

Duston K. Barton (Leonard H. MacPhee with him on the brief), Perkins Coie LLP, Denver, Colorado, for Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

Big Cats of Serenity Springs is a Colorado-based non-profit that provides housing, food, and veterinary care for exotic animals. The facility is regulated by the United States Department of Agriculture's Animal and Plant Health Inspection Service (APHIS), established pursuant to the Animal Welfare Act. Three APHIS inspectors accompanied by El Paso County sheriff's deputies broke into the Big Cats facility without its permission to perform an unannounced inspection of two tiger cubs. But at the time the inspectors entered the facility, the cubs were at a veterinarian's office receiving treatment, just as Big Cats had promised the APHIS inspectors the previous day.

Big Cats and its directors sued the APHIS inspectors for the unauthorized entry pursuant to Bivens v. Six Unknown Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983, asserting the entry was an illegal search under the Fourth Amendment. The district court denied the APHIS inspectors' motion to dismiss the complaint and they filed an interlocutory appeal challenging the court's failure to grant qualified immunity. This court has jurisdiction over the interlocutory appeal from the district court's order under 28 U.S.C. § 1291. See Mitchell v. Forsyth , 472 U.S. 511, 535, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Additionally, the court has jurisdiction over the question of whether a Bivens remedy exists because it was sufficiently implicated by the qualified immunity defense. See Wilkie v. Robbins , 551 U.S. 537, 549 n.4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007).

We affirm in part and reverse in part. Big Cats' complaint has stated a claim for relief under Bivens. No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible, and therefore Big Cats and its directors may have a claim for violation of their Fourth Amendment right to be free from an unreasonable search. But we reverse on Big Cats' civil rights claim because the federal inspectors are not liable under § 1983 in the circumstances here.

I. Background

We start by explaining the regulatory scheme that applies to Big Cats' business and then address the relevant factual and procedural background.

A. The Animal Welfare Act

Big Cats is a licensed wild animal exhibitor under the Animal Welfare Act, 7 U.S.C. §§ 2131 –59 (AWA). Under the AWA, a facility must meet care and sanitation standards issued by the United States Department of Agriculture (USDA). 7 U.S.C. § 2143(a). Among other things, the regulations require licensees to handle animals safely, 9 C.F.R. § 2.131, provide adequate veterinary care, id. at § 2.40, and mark animals for identification, id. at § 2.50.

To enforce these standards, the AWA authorizes the USDA to "make such investigations or inspections as [the USDA] deems necessary." 7 U.S.C. § 2146(a). It grants the USDA access to licensees' facilities, animals, and records "at all reasonable times." Id. The corresponding regulations require a licensed organization to allow inspectors "during business hours ... to enter its place of business ... [and] inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act...." 9 C.F.R. § 2.126.

Violations by licensees, whether by providing substandard care or refusing inspection, are sanctioned through an administrative process. 7 U.S.C. § 2149. Licensees are subject to license suspension, civil penalties up to $10,000, and in some instances, imprisonment for up to one year. Id. Licensed organizations can appeal a final order to a federal Court of Appeals to "enjoin, set aside, suspend (in whole or in part), or determine the validity of the Secretary's order." Id. at § 2149(c).

B. The Incident

The following allegations are from Big Cats' complaint, and we take them as true for purposes of our analysis. Weise v. Casper , 507 F.3d 1260, 1269–70 (10th Cir. 2007).

After a routine inspection of Big Cats' Serenity Springs Wildlife Center in early April 2013, APHIS inspectors determined that the care of an injured tiger cub was substandard and issued a citation requiring Big Cats to provide veterinary care. But when an inspector conducted a follow-up visit the next week, she found that the injury had worsened, and issued another citation. Big Cats denied both allegations and contested both citations, claiming they were part of a "pattern of harassing behavior" by the inspectors. App. 51.

On May 6, APHIS inspectors conducted another follow-up inspection. The inspectors claimed the cub's injuries had worsened, and also noticed that a different cub was suffering from an injured hind leg. Although Big Cats claimed the cubs had been treated and were receiving appropriate medications, the inspectors again cited Big Cats for failure to use "appropriate methods to prevent, control, diagnose, and treat diseases and injuries." 9 C.F.R. § 2.40(b)(2). The inspectors required the cubs to be evaluated as soon as possible, but "not later than 8:00 AM on 5/7/2013." App. 37.

During the inspection, Big Cats' founder and director, Nick Sculac, asked whether the cubs could be examined on May 8, because he had already scheduled an in-facility visit for that day with his contract veterinarian. But the APHIS officials would not approve a one-day delay. So even though transportation to a clinic risked further injury according to two of Big Cats' contract veterinarians, it was Mr. Sculac's only option to meet the citation's 8:00 a.m. requirement. He arrived, with the cubs, at the veterinary clinic at 7:00 a.m. on May 7.

Meanwhile, around 8:00 a.m., three APHIS personnel arrived at the Serenity Springs Wildlife Center only to find the facility closed. After unsuccessfully trying to reach Mr. Sculac on his cell phone, the inspectors decided to forcibly enter the facility. They contacted the El Paso County Sheriff's Office at 8:45 a.m., requesting urgent assistance in entering the facility. Two sheriff's deputies arrived at the facility and were told by the inspectors that they had a court order to seize the cubs. The deputies cut the outer gate's chains, and the inspectors entered the facility. They then cut the locks off an inner gate to access the pens, where they encountered an employee. The employee was "shocked and alarmed to suddenly see three [APHIS personnel] and two heavily armed police officers appear inside the locked, private facility." App. 17. After she informed them the cubs were at the veterinary clinic, the inspectors left and went to the clinic.

C. Procedural History

Big Cats and its directors filed a lawsuit against the APHIS inspectors, alleging a Fourth Amendment Bivens claim and a statutory claim under 42 U.S.C. § 1983. The district court denied the government's motion to dismiss, concluding the inspectors were not entitled to qualified immunity because their conduct—forcible entry without permission—violated clearly established Fourth Amendment constitutional law. The inspectors bring this interlocutory appeal from the denial of qualified immunity.

II. Analysis

The government makes two arguments: first, it contends neither Bivens nor § 1983 apply to the APHIS inspectors' unauthorized entry into Big Cats' facility; and, second, even if the inspectors' conduct was unlawful, it argues that the inspectors are still entitled to qualified immunity because the violation was not clearly established under federal law.

Since this is the denial of a Rule 12(b)(6) motion, our review is de novo, accepting "all well-pleaded allegations ‘of the complaint as true and consider[ing] them in the light most favorable to the nonmoving party.’ " Butler v. Rio Rancho Pub. Sch. Bd. of Educ. , 341 F.3d 1197, 1199 (10th Cir. 2003) (quoting Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999) ). "To survive a motion to dismiss, a complaint must allege facts that, if true, ‘state a claim to relief that is plausible on its face.’ A claim is facially plausible when the allegations give rise to a reasonable inference that the defendant is liable." Mayfield v. Bethards , 826 F.3d 1252, 1255 (10th Cir. 2016) (quoting Wilson v. Montano , 715 F.3d 847, 852 (10th Cir. 2013) ). In the context of qualified immunity, we may not dismiss a complaint for failure to state a claim unless it appears beyond doubt that plaintiffs cannot prove a set of facts that would entitle them to relief. Id.

We address the Bivens and § 1983 claims in turn.

A. Bivens

The government first contends that a Bivens cause of action is not available under the Animal Welfare Act. It argues a Bivens remedy is not available where the AWA provides parties with an alternative remedy for misconduct. But as we explain, the AWA does not allow forcible entry to a licensee's facility, nor does it provide licensees any relief from such conduct. A Bivens claim is Big Cats' only available relief for an unconstitutional search of its premises....