United Pet Supply, Inc. v. City of Chattanooga

• Decision Date: 18 September 2014
• Docket Number: No. 13–5181.,13–5181.
• Citation: 768 F.3d 464
• Parties: UNITED PET SUPPLY, INC., Plaintiff–Appellee, v. CITY OF CHATTANOOGA, TENNESSEE, Defendant, Animal Care Trust, acting under the assumed name of McKamey Animal Care or McKamey Animal Care and Adoption Center; Paula Hurn, Karen Walsh, and Marvin Nicholson, Jr., in their individual and official capacities, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

768 F.3d 464

UNITED PET SUPPLY, INC., Plaintiff–Appellee

v. CITY OF CHATTANOOGA, TENNESSEE, DefendantAnimal Care Trust, acting under the assumed name of McKamey Animal Care or McKamey Animal Care and Adoption Center; Paula Hurn, Karen Walsh, and Marvin Nicholson, Jr., in their individual and official capacities, Defendants–Appellants.

No. 13–5181.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 8, 2013.

Decided and Filed: Sept. 18, 2014.

Rehearing En Banc Denied Nov. 6, 2014.

ARGUED:Edmund S. Sauer, Bradley Arant Boult Cummings, LLP, Nashville, Tennessee, for Appellants. M. Andrew Pippenger, Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, Tennessee, for Appellee. ON BRIEF:Edmund S. Sauer, Bradley Arant Boult Cummings, LLP, Nashville, Tennessee, David E. Harrison, Mark W. Litchford, Grant, Konvalinka & Harrison, PC, Chattanooga, Tennessee, Scott Burnett Smith, Bradley Arant Boult Cummings LLP, Hunstville, Alabama, for Appellants. M. Andrew Pippenger, James S. Hildebrand, Jr., Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, Tennessee, for Appellee.

Before: GUY, BATCHELDER, and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In June 2010, Animal Care Trust (“McKamey”), a private non-profit corporation that contracted with the City of Chattanooga to provide animal-welfare services, received complaints of neglect and unsanitary conditions at a mall pet store owned by United Pet Supply, Inc. (“Pet Supply”). McKamey employees Karen Walsh and Marvin Nicholson, Jr. went to the store to investigate and discovered animals in unpleasant conditions, without water, and with no working air conditioner in the store. Walsh and Nicholson, aided by McKamey employee Paula Hurn, proceeded to remove the animals and various business records from the store and to revoke the store's pet-dealer permit. Pet Supply then brought the instant § 1983 suit in federal district court against the City of Chattanooga; McKamey; and McKamey employees Karen Walsh, Marvin Nicholson, Jr., and Paula Hurn in their individual and official capacities. Pet Supply alleged that the removal of its animals and revocation of its pet-dealer permit without a prior hearing violated procedural due process and that the warrantless seizure of its animals and business records violated the Fourth Amendment. Walsh, Nicholson, Hurn, and McKamey asserted qualified immunity as a defense to all claims.

We conclude that Hurn, acting as a private animal-welfare officer, may not assert qualified immunity as a defense against suit in her personal capacity because there is no history of immunity for animal-welfare officers and allowing her to assert qualified immunity is not consistent with the purpose of 42 U.S.C. § 1983. However, Walsh and Nicholson, acting both as private animal-welfare officers and as specially-commissioned police officers of the City of Chattanooga, may assert qualified immunity as a defense against suit in their personal capacities. With respect to entitlement to summary judgment on the basis of qualified immunity in the procedural due-process claims: Walsh and Nicholson are entitled to summary judgment on the claim based on the seizure of the animals, Nicholson is entitled to summary judgment on the claim based on the seizure of the permit, and Walsh is denied summary judgment on the claim based on the seizure of the permit. Regarding entitlement to summary judgment on the basis of qualified immunity on the Fourth Amendment claims: Walsh and Nicholson are entitled to summary judgment on the claim based on the seizure of the animals, Nicholson is entitled to summary judgment on the claim based on the seizure of the business records, and Walsh is denied summary judgment on the claim based on the seizure of the business records.

Because qualified immunity is not an available defense to an official-capacity suit, we conclude that Walsh, Nicholson, Hurn, and McKamey may not assert qualified immunity as a defense against suit in their official capacities.

For the reasons set forth below, we AFFIRM in part and REVERSE in part the district court's entry of summary judgment, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Jurisdiction

Typically, the denial of summary judgment is a non-final order that cannot be appealed under 28 U.S.C. § 1291. The interlocutory appeal of the denial of qualified immunity is permissible under the collateral-order doctrine “only ‘to the extent that it turns on an issue of law.’ ” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 (6th Cir.2013) (quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir.2005) ). “[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record set forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). “[A]n appellant's contention that the district court erred in finding a genuine issue of fact for trial is not the type of legal question which we may entertain on an interlocutory basis.” Gregory v. City of Louisville, 444 F.3d 725, 743 (6th Cir.2006). Improper arguments contesting whether a genuine issue of fact exists do not deprive this court of jurisdiction; “even where, as here, the defendant makes ‘impermissible arguments regarding disputes of fact,’ if the defendant also raises the purely legal issue of whether the plaintiff's facts show that the defendant violated clearly established law, ‘then there is an issue over which this court has jurisdiction.’ ” Quigley, 707 F.3d at 680 (quoting Estate of Carter, 408 F.3d at (310)).

The defendants in this case are a private non-profit corporation that contracts with the City of Chattanooga and the corporation's employees. As with government officials, we permit “private parties to obtain interlocutory review of denials of qualified immunity.” Brotherton v. Cleveland, 173 F.3d 552, 559 (6th Cir.1999). Accordingly, we have jurisdiction over this appeal of the denial of qualified immunity.

B. Factual Background

The plaintiff-appellee in this suit is United Pet Supply, Inc., (“Pet Supply”), a private corporation that owns multiple pet stores, including the Hamilton Place Mall pet store at the center of this dispute (“the pet store”). The defendants-appellants are Animal Care Trust (“McKamey”), a private non-profit corporation that contracts with the City of Chattanooga to provide animal-welfare services, and McKamey employees Paula Hurn, Karen Walsh, and Marvin Nicholson, Jr. Defendant Walsh is the executive director of McKamey. R. 70–7 (Walsh Aff. at ¶ 2) (Page ID # 1603). Defendant Nicholson is an animal-services officer at McKamey. R. 70–8 (Nicholson Aff. at ¶ 2) (Page ID # 1635). Defendant Hurn is the Director of Operations at McKamey. R. 67–1 (Hurn Aff. at ¶ 2) (Page ID # 1205). The contract between McKamey and the City of Chattanooga permitted McKamey employees to be commissioned as special police officers of the city authorized to investigate animal neglect and cruelty complaints and to issue citations. R. 70–2 (Contract at 2–3) (Page ID # 1411–112). Both Walsh and Nicholson were commissioned as special police officers for the City of Chattanooga at the time of the events in this lawsuit. R. 70–7 (Walsh Aff. at ¶ 4) (Page ID # 1604); R. 70–8 (Nicholson Aff. at ¶ 4) (Page ID # 1636). Hurn was not commissioned as a special police officer.

In the months preceding the incident that gave rise to this suit, McKamey received complaints about “animal neglect occurring and unsanitary conditions existing” at the pet store. R. 70–7 (Walsh Aff. at ¶ 7) (Page ID # 1604). According to Steven Zerilli, the President of Pet Supply, Walsh and Nicholson visited Pet Supply on seven occasions between January and April 2010 and issued only one warning; the warning involved availability of treatment records for a canary. R. 96–4 (Zerilli Aff. at ¶ 12) (Page ID # 3270). On May 11, 2010, McKamey issued Pet Supply a permit certifying that the store “has met the requirements of the Code of the City of Chattanooga and is approved by the McKamey Animal Services Division to operate as a Pet Dealer in the City of Chattanooga.” R. 69–3 (Pet Dealer Permit at 1) (Page ID # 1340).

In June 2010, Pet Supply employee Ashley Knight came to McKamey and requested a meeting with Walsh. Walsh reported that Knight described “incidents of animal neglect and abuse” at the store, “including a dead puppy listed ‘Fit for Sale’ was stuffed in a refrigerator freezer with the employees' lunches, a broken air conditioner, and a live hamster that [Pet Supply manager Brandy] Hallman placed in a garbage compactor.” R. 70–7 (Walsh Aff. at ¶ 10) (Page ID # 1605). Based on this report, Walsh contacted the Tennessee Department of Agriculture, which enforces state animal law, and asked whether the Department would assist in an investigation of the pet store. Id. at ¶ 11 (Page ID # 1605–06). State Animal Health Technician Joe Burns agreed to assist McKamey with the investigation. Id.

Without notifying Pet Supply in advance, Walsh, Burns, and Nicholson arrived at the pet store on June 15, 2010, around 8:00 a.m. Id. at ¶ 15 (Page ID # 1606). Hallman permitted the three individuals to enter the store. Id. at ¶ 17–18 (Page ID # 1607). Hallman confirmed Knight's report that a puppy had recently died at the store and that the puppy's carcass had been placed in the refrigerator freezer. R. 70–8 (Nicholson Aff. at ¶ 18) (Page ID # 1639). Walsh and Nicholson observed “little to no evidence of food or water for the puppies”; “unsanitary conditions such as dried fecal matter that was matted in the fur of the puppies”; “damaged and cracked cages”; “puppies that appeared to be very lethargic and dehydrated,” some of whom were struggling to drink water; and “that the store's interior temperature was considerably hotter than the Mall's open corridor section.”...