Lowery v. Faires, 1:97-CV-376.

• Decision Date: 26 May 1998
• Docket Number: No. 1:97-CV-376.,1:97-CV-376.
• Citation: 57 F.Supp.2d 483
• Parties: Samuel D. LOWERY, Jr., Plaintiff, v. Arlene FAIRES, individually and as a representative of an association of persons purportedly acting under the name of Pets are Lovable Society a/k/a PALS and Don Bird, individually and as Deputy Sheriff of Bradley County, Tennessee, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

57 F.Supp.2d 483

Samuel D. LOWERY, Jr., Plaintiff, v. Arlene FAIRES, individually and as a representative of an association of persons purportedly acting under the name of Pets are Lovable Society a/k/a PALS and Don Bird, individually and as Deputy Sheriff of Bradley County, Tennessee, Defendants.

No. 1:97-CV-376.

United States District Court, E.D. Tennessee, at Chattanooga.

May 26, 1998.

James F. Logan, Jr., Logan, Thompson, Miller, Bilbo, Thompson & Fisher, Cleveland, TN, for Samuel D. Lowery, Jr. dba Lowery Brothers, plaintiffs.

Conrad Finnell, Conrad Finnell PC & Associates, Cleveland, TN, for John Thompson, Jeff Howard.

James S. Webb, Webb & Humberd, Ashley L. Ownby, Cleveland, TN, Elaine B. Winer, Rice & Winer, PC, Chattanooga, TN, for Arlene Faires.

James S. Webb, Webb & Humberd, Cleveland, TN, Elaine B. Winer, Chattanooga, TN, for Don Bird.

MEMORANDUM

COLLIER, District Judge.

In this dispute over the seizure of beef cattle owned by Plaintiff Samuel Lowery, Jr. ("Lowery") by Bradley County, Tennessee Sheriff's deputies Don Bird ("Bird") and Arlene Faires ("Faires") and others, Lowery seeks damages pursuant to 42 U.S.C. § 1983. Before the Court are Defendants Faires's, Bird's, Pets are Lovable Society's ("PALS"), and the Bradley County Sheriff's Department's Motion for Summary Judgment (Court File No. 17) and Lowery's response (Court File No. 21). For the following reasons, the Court will GRANT Defendants' motion to the extent it seeks dismissal of Lowery's § 1983 claim, DENY Defendants' motion to the extent it seeks dismissal of Lowery's state law claims, DECLINE to exercise supplemental jurisdiction over Lowery's state law claims, and REMAND this case to the Circuit Court for Bradley County, Tennessee.

I. RELEVANT FACTS

Genesis of the Problem

Prior to the seizure, Lowery had been in the cattle business for many years. Approximately 350 head of Lowery's cattle were pastured on two farms he leased in Georgia. Approximately 100 head were pastured on his Bradley County farm. The two Georgia farms were sold resulting in Lowery losing his lease. In September and October of 1993, Lowery moved his cattle from the two Georgia farms to his Bradley County farm. This move resulted in over 450 head of cattle on Lowery's 500 acre Bradley County farm.

Although disputed, it appears abundantly clear that the concentration of so many cattle on the one farm immediately created dire food shortages for the cattle. Finding the 500 acres insufficient to supply their food needs, the cattle began escaping from the farm and foraging on their own for food. According to the defendants, the cattle entered neighbor's land, damaged property, ruined gardens, ate wheat from neighbor's wheat fields, and constituted a general health and safety hazard. Faires¹ testified "cattle were getting out, wrecks were occurring," "property was being destroyed ...," and animals were starving. As a result of the cattle's search for food they journeyed across roads and onto other's property. According to Faires and Bird², the Bradley County Sheriff's Department received over 90 complaints about the cattle. Faires testified the complaints indicated the cattle were "running at large. They were on their [neighbor's] porches, mooing in their windows, eating their wheat fields. They were charging people. There were ruining people's property, leaving droppings everywhere, [and] ruining gardens. They were dying and they weren't being buried. The stench was pretty bad" (Deposition of Faires at p. 8, Court File No. 21). One of the law enforcement agents from the Agricultural Department "said it was one of the worst situations he had seen" (Deposition of Bird at p. 10, Court File No. 21).

In October of 1993, Lowery and his uncle, Frank Lowery, were summoned to the General Sessions Court of Bradley County based on a complaint charging violations of Tenn.Code Ann. §§ 44-8-401 (Livestock Running at Large) and 39-14-202 (Cruelty to Animals). Faires also discussed the situation with both Lowery and Frank Lowery. Prior to the seizure, Lowery admits Frank Lowery had told him of complaints about the marauding cattle. Lowery also admitted he knew the cattle were escaping. Lowery testified he tried to return the cattle to his farm and repair the fence through which the cattle were escaping.

Sheriff's Office's Response

On two separate occasions, Bird and Faires attempted to obtain an order from the General Sessions Court permitting the impoundment of Lowery's cattle. Both requests were denied. Bird and Faires then met with Assistant District Attorney General Rebel Johnson and were informed they could impound the cattle pursuant to Tenn.Code Ann. § 39-14-210 which states:

(a) The agents of any society which is incorporated for the prevention of cruelty to animals, upon being appointed thereto by the president of such society in any county, may, within such county, make arrests, and bring before any court thereof offenders found violating the provisions of this part with regard to non-livestock animals.

(b) Any officers, agents, or members of such society may lawfully interfere to prevent the perpetration of any act of cruelty upon any animal in such person's presence. Any person who interferes with or obstructs any such officer, agent, or member in the discharge of this duty commits a Class C misdemeanor.

(c) Any agent or officer of such society may lawfully destroy, or cause to be destroyed, any animal found abandoned or otherwise ....

The Impoundment

On November 17, 1993, Faires and a veterinarian traveled to the Lowery farm to evaluate the cattle. The veterinarian found there was inadequate pasture for the cattle. The veterinarian also noted many of the cattle were dying and there were decomposing carcasses next to where other cattle were feeding. On November 18, 1993, Bird and Faires along with several farmers from the community traveled to Lowery's farm. When Bird, Faires, and the others arrived at the farm, they were met by Frank Lowery. Samuel Lowery was ill and was not present. Frank Lowery was served with a notice of impoundment for the cattle. The notice read as follows:

To: Frank and Sammy Lowery November 18, 1993

From: PALS, PETS ARE LOVABLE SOCIETY

Your cattle are being impounded according to the laws of this state, Tennessee, for their protection and the protection of the public.

On 11-17-93, your property and cattle were evaluated by a practicing Tennessee licensed veterinarian. It was his qualified opinion that there was inadequate pasture for the size of the herd without supplemental feeding, inadequate fencing, 5 or more dead carcasses of cattle in different stages of decay which presents a health hazard due to the cattle eating next to carcass due to no supplemental feed, pattern [sic] of the cattle in the woods where there is nothing but scrub brush, said [sic] many would not survive the winter without hay or grain or both. He also asked about health certificates for those cattle brought in across state lines.

This action is being taken after repeated warnings from PALS [sic] representative [sic] and the Bradley County Sheriff [sic] Department. On 10-26-93, you were subpoened [sic] to the Court at the Bradley County Justice Center before Judge Bennett and several complainants due to the problems with your cattle. To secure the payment of costs, executions may be levied upon the stock impounded.

(Court File No. 18, Exh. 1).

Without a warrant, the parties then proceeded to seize several heads of cattle. The seizure continued through December 1993. After the seizure, Lowery contends he was left with only 6 head of cattle.³ Lowery also contends he did not have a hearing prior to the seizure.

The Litigation

In December of 1993, the criminal charges against Lowery were brought before the grand jury. A true bill was returned against Lowery for the charge of letting the cattle run at large and Lowery paid a $25 fine. A no bill was returned on the charge of cruelty to animals. On March 1, 1994, Lowery then brought suit in the Chancery Court of Bradley County, Tennessee, against Faires, individually and as a representative of PALS, and Don Bird, individually and as Deputy Sheriff of Bradley County, alleging "the plaintiff should be granted judgment against the defendants for the value of the cattle which were taken, for the trespass and destruction of personal property which occurred to the property which was under the control of the plaintiff" (Court File No. 1, Exh. 1, ¶ 16(d)). John Thompson and Jeff Howard filed intervening petitions against the Defendants alleging they were owed for the pasturing, feeding, and care they provided after the cattle were seized.⁴ Thompson and Howard also asserted a lien against Lowery for any unjust enrichment he may have received as a result of Thompson's and Howard's pasturing, feeding, and caring for Lowery's cattle. PALS answered the complaint and filed a counterclaim against Samuel Lowery and a third party complaint against Frank Lowery.⁵ Bird and Faires also answered Lowery's complaint (Court File No. 16, Exhs. 1 and 2).

Lowery and the Defendants agreed to sell the seized cattle and deposit the funds from the sale with the clerk's office pending resolution of this litigation. Accordingly, on April 5, 1994, Chancellor Earl Henley signed an Order permitting Lowery to take up to forty head of cattle and directing the other seized cattle sold at auction. At the auction, Lowery reclaimed some of his cattle and also purchased a few bringing his herd to 100 head of cattle. The proceeds from the sale of the remaining cattle were deposited by the Clerk & Master.

On September 1, 1994, the case was transferred to the Circuit Court for Bradley County, Tennessee. On June 26, 1997, Lowery amended his complaint to state a § 1983 claim. Defendants then removed the case to this Court. Defendants have filed a motion for summary judgment on Lowery's § 1983 claim and state law claims. With respect to the...