Big Cats of Serenity Springs, Inc. v. Vilsack

Citation84 F.Supp.3d 1179
Decision Date25 March 2015
Docket NumberCivil Action No. 13–CV–03275–REB–KLM
PartiesBig 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.
CourtU.S. District Court — District of Colorado

Leonard H. MacPhee, Duston K. Barton, Perkins Coie LLP, Denver, CO, for Plaintiffs.

Juan G. Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.

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

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, 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 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' 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 Bivens2 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's3 ] pain and distress ...'[.] Id.¶¶ 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...

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    ...violate Rule 12(f), the Court still possesses the discretion to grant or deny the motion. See Big Cats of Serenity Springs, Inc. v. Vilsack, 84 F. Supp. 3d 1179, 1198 (D. Colo. 2015); see also Wright & Miller, supra, § 1382 (the district court possesses considerable discretion in disposing ......
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