Pennington v. Penner
| Decision Date | 09 May 2002 |
| Docket Number | No. 01-4021-SAC.,01-4021-SAC. |
| Citation | 207 F.Supp.2d 1225 |
| Parties | Garry PENNINGTON, Plaintiff, v. William PENNER, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Lee R. Barnett, Keith E. Renner, Barnett & Renner, PA, Auburn, KS, Kenneth D. Winford, Tenth Judicial District Public Defender, Olathe, KS, for Plaintiff.
David S. Brake, Patrick R. Hrenchir, Henshall, Pennington & Brake, Chanute, KS, Michael T. Jilka, Wendell F. Cowan, Jr., Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Defendants.
The case comes before the court on the motion to dismiss (Dk. 6) filed by the defendants, Linus Thuston and the Board of County Commissioners of Neosho County, Kansas, and the motion to dismiss (Dk. 8) filed by the defendants, William Penner, L. ("Larry") Roberts, and the City of Chanute, Kansas. This case arises out of an investigation and prosecution of the plaintiff for cruelty to his horses and the eventual seizure of his horses as a result of those efforts. Claiming violations of his rights under the Fourth and Fourteenth Amendment, the plaintiff brings this action pursuant to the federal civil rights statute, 42 U.S.C. § 1983. The plaintiff also asserts several state law claims relying on the court's supplemental jurisdiction. The plaintiff has filed memoranda opposing both motions to dismiss, and the defendants have filed their respective reply memoranda.
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir.1991) . The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)).
Although a plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Put another way, "`conclusory allegations without supporting allegations are insufficient to state a claim.'" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110), cert. denied, ___ U.S. ___, 122 S.Ct. 1438, 152 L.Ed.2d 382 (2002). "[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir.1990) (). " " Stevens v Umsted, 131 F.3d 697, 700 (7th Cir.1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986)).
Nor is it the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). Rather, a court judges the sufficiency of the complaint accepting as true all wellpleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881, 119 S.Ct. 188, 142 L.Ed.2d 154 (1998). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989).
Because the plaintiff's detailed complaint contains at least 117 paragraphs of factual allegations, the court will provide only a brief outline of the more significant events alleged there. Within the limits of the City of Chanute, Kansas, the plaintiff Garry Pennington rented approximately twelve and one-third acres on which he kept a herd of Paso Finos horses for breeding and raising. At all times material to this case, his herd was no more than sixteen horses. William Penner is an animal control officer for the City of Chanute, and Larry Roberts is a police officer for the City. Linus Thuston is the county attorney for Neosho County, Kansas.
Upon complaints from citizens associated with a group known as International Generic Horse Association and HorseAid ("HorseAid"), Officer Penner accompanied by two members of HorseAid went upon the plaintiff Pennington's property in February of 1998 to inspect the care and condition of the horses. Later that month, Pennington received a letter from Officer Penner with instructions on caring for his dogs and horses. No citations were issued, and no other apparent action was taken against Pennington during the next year.
Between April 28, 1999, and May 11, 1999, Officer Penner visited the plaintiff's property every day to check on the horses' condition. It was two months later when Penner again returned to inspect the horses, and on July 26, 1999, accompanied by three members of HorseAid, Penner inspected and videotaped the condition of the plaintiff's herd. That same day, Penner showed the videotape recording to Neosho County Attorney Thuston. The plaintiff alleges that Thuston, after viewing the videotape, "ordered the seizure of plaintiff's horses" and "authorized the horses' placement with" these members of HorseAid. Later that afternoon, Penner called the veterinarian, Dr. Montfort, to inspect the horses immediately while he and the others waited at the plaintiff's property. When Pennington came to his leased property, Penner told him that the horses had been seized at the County Attorney's direction, that Pennington would be charged with cruelty to animals, that the charges would be filed the next day, and that he was not allowed to come upon his leased property. Upon Dr. Monfort's arrival, the plaintiff left his property and the others who were there inspecting his horses.
County Attorney Thuston arrived on the scene shortly after Dr. Montfort. Thuston walked around the plaintiff's property and inspected the dog pens. After looking over the herd, Dr. Montfort advised Thuston and others that he "saw no evidence of intentional cruelty or abuse, nor were any horses in a condition that was not recoverable with improved care." (Dk. 1, ¶ 31). Later that evening, the plaintiff returned to his property and learned that Thuston and Penner had heard Dr. Montfort's report on the herd's condition and his recommendation against seizing the horses. Attorney Thuston and Officer Penner, however, were not persuaded by Dr. Montfort's opinion because he had provided veterinarian services for the plaintiff on prior occasions and appeared to be biased in favor of the plaintiff.
The next morning on July 27, 1999, the plaintiff went to the county attorney's office and met with Thuston and Penner. Thuston explained to Pennington that criminal charges were being prepared and asked the plaintiff if he wanted counsel to be present during their meeting. The plaintiff apparently did not ask for counsel but did inquire about what he could do to resolve this situation. Thuston responded that the plaintiff's surrender of all his horses would end the matter. The plaintiff summarily alleges in his complaint that "under the duress and coercion caused by the witch-hunt mentality that prevailed in the county prosecutor's office and the very real fear of unwarranted criminal prosecution, possible loss of his job and public humiliation if he resisted, he agreed to the surrender of his Paso Finos herd which he had been developing for fourteen years." (Dk.1, ¶ 43). By reason of this agreement, Thuston told the plaintiff that no charges would be pressed and that the matter would be kept confidential so long as the plaintiff surrendered his horses. Thuston further agreed to allow the plaintiff to keep two mares and their foals and to complete his sale of one mare and foal, but he refused the plaintiff's request to keep the stallion. Before the meeting was over, the plaintiff was given animal surrender forms and told he would have five days notice before the animals were removed.
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