Big Cats of Serenity Springs, Inc. et al v. Vilsack et al

Filing 46

ORDER ADOPTING 40 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Defendants' 41 Objections to the Recommendation of U.S. Magistrate Judge are overruled. Defendants' 23 Motion to Dismiss is granted in part and denied in part. 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 in all other respects, the motion is denied. By Judge Robert E. Blackburn on 3/25/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-03275-REB-KLM
BIG 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.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
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
1

“[#40]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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

2

Noting that the Tenth Circuit has not yet addressed whether a viable cause of action may arise
under section 1983 where federal officials (as opposed to private parties) allegedly enlist the assistance
of state officials to violate constitutional rights, the magistrate judge found the California district court’s
unpublished decision in Reynoso v. City and County of San Francisco, 2012 WL 646232 (N.D. Cal
Feb. 28, 2012) persuasive. I note that the legal principle on which the Reynoso court relied was not sui
juris, but traces back at least as far as the Second Circuit’s decision in Kletschka v. Driver, 411 F.3d 436
(2nd Cir. 1969). In Kletschka, the court concluded that such a result was a logical extension of the
principle that holds federal actors liable under section 1983 where they act jointly with private parties:

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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 nonlicensee plaintiffs, who lack standing to pursue such claims, and those

We can see no reason why a joint conspiracy between federal and state
officials should not carry the same consequences under § 1983 as does
joint action by state officials and private persons. It was the evident
purpose of § 1983 to provide a remedy when federal rights have been
violated through the use or misuse of a power derived from a State.
When the violation is the joint product of the exercise of a State power
and of a non-State power then the test under the Fourteenth Amendment
and § 1983 is whether the state or its officials played a ‘significant’ role in
the result.
Id. at 448-49 (internal citation omitted). This same principle also has been relied on by the United States
Courts of Appeals for the Third, Fifth, Eighth, and Ninth Circuits as well district courts in the Sixth and
First Circuits. See Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir. 1986), cert. denied, 107 S.Ct.
928 (1987); Premachandra v. Mitts, 753 F.2d 635, 641 (8th Cir. 1985); Krynicky v. University of
Pittsburgh, 742 F.2d 94, 99 (3rd Cir. 1984), cert. denied, 105 S.Ct. 2018 (1985); Knights of Ku Klux
Klan, Realm of Louisiana v. East Baton Rouge Parish School Board, 735 F.2d 895, 900 n.7 (5th Cir.
1984); Bergman v. United States, 551 F.Supp. 407, 412 (W.D. Mich. 1982); Richardson v. Virgin
Islands Housing Authority, 1982 WL 704983 at *4 n.5 (D. Virgin Islands Feb. 23, 1981).

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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.
Dated March 25, 2015, at Denver, Colorado.
BY THE COURT:

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