Borenstein v. Animal Found.

• Decision Date: 17 March 2021
• Docket Number: Case No.: 2:19-cv-00985-APG-DJA
• Citation: 526 F.Supp.3d 820
• Parties: Brian BORENSTEIN, Plaintiff v. The ANIMAL FOUNDATION, et al., Defendants
• Court: U.S. District Court — District of Nevada

526 F.Supp.3d 820

Brian BORENSTEIN, Plaintiff

v.The ANIMAL FOUNDATION, et al., Defendants

Case No.: 2:19-cv-00985-APG-DJA

United States District Court, D. Nevada.

Signed March 17, 2021

Raelene K. Palmer, The Palmer Law Firm, P.C., Robert Sean Melcic, Las Vegas, NV, for Plaintiff.

I. Scott Bogatz, Kerry Elizabeth Kleiman, Reid Rubinstein and Bogatz, Las Vegas, NV, for Defendant The Animal Foundation.

Joshua M. Dickey, Stephanie Jean Glantz, Bailey Kennedy, Las Vegas, NV, for Defendants Sunrise Hospital and Medical Center, LLC, Ulrike Pasternak.

Kerry Elizabeth Kleiman, Reid Rubinstein & Bogatz, Las Vegas, NV, for Defendant Carly Scholten.

Jonathan D. Blum, Wiley Petersen, Las Vegas, NV, for Defendants Victor Zavala, County of Clark, ex rel. Clark County Animal Control.

Order (1) Granting in Part Defendant The Animal Foundation's Motion to Dismiss; (2) Granting Defendants Sunrise Hospital and Pasternak's Motion to Dismiss; (3) Granting in Part Defendants Clark County and Zavala's Motion to Dismiss; (4) Granting in Part Defendant Scholten's Motion to Dismiss; (5) Granting Defendants The Animal Foundation and Scholten's Motion for Leave to File Supplemental Brief

[ECF Nos. 54, 66, 68, 89, 133]

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

Plaintiff Brian Borenstein adopted a purported service dog, Mana, from a shelter and trained the dog to assist him with tasks that are difficult due to his disabilities. While Borenstein was hospitalized after a heart attack, Borenstein informed the staff at Sunrise Hospital and Medical Center, LLC (Sunrise Hospital) that he had left Mana in his car and that he had no one to take care of the dog. The Sunrise Hospital staff called Clark County Animal Control (CCAC) to pick up Mana, and the officers placed Mana at a shelter run by The Animal Foundation (TAF) for a ten-day hold. Borenstein alleges that while he was still hospitalized, he contacted CCAC and TAF numerous times to ask for a hold extension for Mana but they were unresponsive. After roughly 18 days, TAF lifted the hold on Mana and he was adopted shortly thereafter. When Borenstein tried to claim Mana after leaving the hospital, he was told it was too late.

Borenstein filed this lawsuit and contacted various public and private officials in the community for assistance in reclaiming Mana. TAF then refused to adopt a new animal to Borenstein. Henderson Animal Shelter¹ also refused to adopt to Borenstein, telling him that TAF created an electronic warning telling other shelters in Clark County not to adopt to him.

Borenstein's First Amended Complaint (FAC) asserts claims against Clark County, CCAC Lieutenant Victor Zavala, TAF, and TAF Chief Operating Officer Carly Scholten for constitutional violations, retaliation, Americans with Disabilities Act (ADA) violations, unlawful interference with a service animal, negligence, and intentional infliction of emotional distress (IIED). He also sues Sunrise Hospital and nurse Ulrike Pasternak for ADA violations and negligence. The defendants filed four motions to dismiss, with TAF including a special motion to dismiss based on Nevada's anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. TAF and Scholten also move for leave to file supplemental briefs.

I grant Sunrise Hospital and Pasternak's motion to dismiss. I grant in part and deny in part Clark County and Zavala's motion to dismiss. I grant TAF and Scholten's motion for supplemental briefs and I consider those arguments and the attached electronic warning in this order. I grant in part and deny in part TAF's motion to dismiss and deny its anti-SLAPP special motion. I grant in part and deny in part Scholten's motion to dismiss.

I. BACKGROUND ²

Borenstein alleges he is disabled, with several psychological disorders and cardiovascular impairments. ECF No. 41 at 8. He uses a self-trained service dog to assist him with his disabilities. Id. On May 12, 2019, Borenstein felt symptoms consistent with a heart attack

, so he drove to Sunrise Hospital with his service dog Mana. Id. at 9. Borenstein brought Mana into the emergency room with him but the dog became anxious. Id. at 10. Borenstein then took Mana out and left him in the car. Id. at 10. When Borenstein returned, he learned he would be admitted to the intensive care unit. Id. Borenstein "informed" hospital staff that Mana was unattended in his car, that he had no family or friends to care for the dog, and that the dog would need boarding while Borenstein was incapacitated at the hospital. Id. "[A]fter providing this information, Borenstein was sedated." Id.

Later that day, a hospital staff member called CCAC about Mana. Id. at 11. When CCAC officer Rachel Lund arrived, a Sunrise Hospital security officer and defendant nurse Pasternak informed Lund that Borenstein had been admitted as a patient, that his service dog was in his car, and that the dog seemed "aggressive." Id. Lund relayed this information to CCAC Lieutenant Zavala, who has had prior interactions with Borenstein and was aware of his disabilities. Id. Zavala had Mana removed from Borenstein's car and placed a ten-day hold on him. Id. Officer Lund had Pasternak sign the impound card for Mana and left a copy with her to give to Borenstein to advise him about the impound and the hold. Id. at 12. The card stated: "Owner hospitalized / admitted and currently sedated." Id. at 13.

Mana was taken to the Lied Animal Shelter operated by TAF. Id. at 12-13. TAF and Scholten (as TAF's COO) had prior interactions with Borenstein because TAF had cared for Mana overnight the month before and had cared for Borenstein's previous service dog in 2018. Id. at 9-10. Borenstein, who is indigent, did not pay TAF for boarding his service dogs. Id. at 8-9. TAF staff, including Scholten, were "displeased" by this. Id. at 9-10.

On May 13, 2019, a TAF staff member sent an email to Borenstein explaining that if he did not contact TAF by 2:35 p.m. on May 22, Mana could be adopted out. Id. The email instructed Borenstein to contact TAF for a quote on fees if he planned to reclaim Mana, and to contact them if he wanted more time to claim him. Id. The email explained that if Borenstein received a recorded message, to leave a message no matter what and to do so before the time expired on Mana's hold. Id. at 13-14. The email also included a phone number for CCAC. Id. at 14. On May 14, TAF sent another email to Borenstein with the same content. Id.

Borenstein did not receive the emails on the dates they were sent because he did not have access to his email in the hospital and he alleges TAF knew this. Id. However, Borenstein contacted TAF several times before the May 22, 2019 deadline, leaving messages indicating he was in the hospital and wanted to reclaim Mana. Id. Despite these efforts, Borenstein did not speak directly with anyone at TAF. Id. At some point, Borenstein was transferred to Loma Linda University Medical Center in California. Id. at 13.

On May 24th, Borenstein called CCAC. Id. He explained to the staff member on the phone that he had a heart attack and provided his room and bed number at Loma Linda. Id. He requested that the hold on Mana be extended and explained he did not have access to a phone to further communicate. Id. at 15. Zavala then sent an email to TAF advising them of Borenstein's request; Borenstein alleges the email was sent to Scholten. Id. Borenstein also alleges, without specifying a time frame, that Scholten, or other TAF staff acting under her direction, purportedly called several Las Vegas hospitals as a pretext for showing additional efforts to reach Borenstein even though they knew he was not in Las Vegas and could not access a telephone. Id. After learning that TAF could not reach Borenstein, Zavala tried to call Borenstein on May 28th at a hospital in Las Vegas where he believed Borenstein had previously stayed and left a message with a caseworker requesting that Borenstein call him. Id. at 16.

On May 30th, approximately 18 days after Mana was brought to the shelter, TAF staff removed the hold placed on Mana and made him available for adoption the following day. Id. At or around 6:25 p.m. on June 1st, Mana was adopted to new owners. Id. Around 13 minutes later, Borenstein left CCAC a voicemail explaining that he was still at the hospital and wanted to reclaim Mana. Id. at 17. Shortly after placing that call, Borenstein was released from the hospital and he returned to Las Vegas. Id. On June 2nd, Zavala informed Borenstein that Mana had already been adopted. Id. Borenstein was overcome with grief and told Zavala he was going to kill himself. Id. Borenstein subsequently met with Scholten and begged her to return Mana to him. Id. Scholten explained that Mana had already been adopted to someone else and that TAF "would euthanize Mana before allowing [Borenstein] to have possession of him, stating that, in her opinion, [Borenstein] was ‘too sick’ to care for Mana." Id. Borenstein was hospitalized shortly after that for suicidal ideation

and other physical or mental impairments. Id.

On June 10, 2019, Borenstein filed the original complaint for this action. ECF No. 1-1. Borenstein also contacted public officials, community leaders, and animal rights organizations to help him reclaim Mana, some of whom contacted TAF. ECF No. 41 at 18. On June 20th, Borenstein filed a motion for a preliminary injunction to have Mana returned to him based on the ADA. ECF No. 3. I denied the request because I found Borenstein unlikely to succeed on the merits as Title III of the ADA does not permit the retroactive relief of returning Mana. ECF No. 19. On appeal, the Ninth Circuit agreed. ECF No. 51.

During the pendency of the litigation, Borenstein was hospitalized several times. ECF No. 41 at 19. During one of these hospitalizations, a doctor prescribed Borenstein a psychiatric/emotional support animal. Id. When Borenstein attempted to adopt a new dog from TAF based on this prescription, staff refused him. Id. Borenstein then went to...