Patrick et al v. Rivera et al

Filing 26

MEMORANDUM ORDER AND DECISION granting 22 Defendant's Motion for Summary Judgment, as to all of Plaintiffs' claims. Counsel for Plaintiff shall submit a proposed judgment to the Courts email box, for its review and entry. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JESSICA M. PATRICK and MIKEL G.
PATRICK,
Plaintiff,

Case No. 2:11-CV-00113-EJL-REB
MEMORANDUM ORDER AND
DECISION

v.
BONNER COUNTY SHERIFF’S
DEPARTMENT KATIE RIVERA;
BONNER COUNTY SHERIFF
DEPUTY TIMOTHY HEMPHILL, and
DOES 1 - 10
Defendants.

INTRODUCTION
Pending before the Court in the above-entitled matter is Defendants’ Motion for
Summary Judgment. The Motion was filed on November 15, 2012. As of the date of this
Order, the Plaintiffs have not filed a response. Having fully reviewed the record, the Court
finds that the facts and legal arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and because the Court conclusively

MEMORANDUM ORDER AND DECISION- 1

finds that the decisional process would not be significantly aided by oral argument, this
matter shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the seizure of a number of animals from the Plaintiffs’ property
on January 7, 2009. The Plaintiffs, Jessica M. Patrick and Mikel G. Patrick (collectively “the
Patricks”), resided in Bonner County, Idaho. On January 7, 2009 Bonner County Sheriff’s
Deputy Timothy Hemphill responded to a call for a child welfare check at the Patrick’s
residence. Deputy Hemphill did not locate any individuals at the residence but did observe
several animals in pens at the property: five horses and one llama. Based on his observations,
Deputy Hemphill believed the animals to be malnourished with no apparent source for food
or water. Deputy Hemphill requested that Bonner County Sheriff’s Detective Katie Rivera
respond to the property to evaluate the animals. Detective Rivera then contacted Idaho
Department of Agriculture Investigator Amity Larsen and both Detective Rivera and
Investigator Larsen responded to the residence. Based upon her observations of the animals,
Investigator Larsen recommended that the Bonner County Sheriff’s Office take custody of
the animals, which they did. The Patricks were each charged with seven counts of animal
cruelty pursuant to Idaho Code § 25-3504.1

1

The seven counts were for each of the six animals seized on January 7, 2009 and for a horse that
had been found dead on the property on the same date.
MEMORANDUM ORDER AND DECISION- 2

The Patricks plead not guilty to the charges in state court and filed a motion to
suppress challenging the seizure of the animals. Ultimately, on July 21, 2009, Bonner County
Magistrate Judge Debra Heise entered an order granting the Patricks’ motion to suppress
finding the officers did not have probable cause to believe the crime of animal cruelty had
been committed and, therefore, the warrantless search and seizure was unconstitutional. The
charges in the state case were dismissed. The Patricks then filed this civil action against the
Defendants pursuant to § 1983. Defendants have filed the instant Motion for Summary
Judgment which the Court now takes up.
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the
existence of an element which is essential to the non-moving party’s case and upon which
the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential
element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof

MEMORANDUM ORDER AND DECISION- 3

concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 323.2
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of
summary judgment, must be both “material” and “genuine.” An issue is “material” if it
affects the outcome of the litigation. An issue, before it may be considered “genuine,” must
be established by “sufficient evidence supporting the claimed factual dispute . . . to require
a jury or judge to resolve the parties’ differing versions of the truth at trial.” Hahn v. Sargent,
523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S.
253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib.
V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment,
a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either party;
and (3) must come forward with more persuasive evidence than would
otherwise be necessary when the factual context makes the non-moving party’s
claim implausible.
Id. at 374 (citation omitted).

2

See also, Rule 56(3) which provides, in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a
genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall
be entered against the adverse party.
MEMORANDUM ORDER AND DECISION- 4

Of course, when applying the above standard, the court must view all of the
evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir.
1992).
ANALYSIS
1.

Failure to Respond to the Motion for Summary Judgment
District Courts may establish local rules of procedure that have the force of law. Fed.

R. Civ. P. 83(a)(1). In this District, Local Civil Rule 7.1 controls when a response must be
filed to a motion and states that the responding party must file its response within twenty-one
days after service upon the party of the motion and memorandum by the moving party. D.
Idaho L. Civ. R. 7.1(c).3 The Rule further provides that failure to respond to a motion may
be deemed consent to the granting of the motion. See D. Idaho L. Civ. R. 7.1(e). Here, the
Patricks are represented by counsel and have not filed a response to the Motion for Summary
Judgment and the time for doing so has passed. Attorneys practicing in a federal district court
are charged with knowledge of the local rules the same as they are charged with knowledge
of the Federal Rules of Civil Procedure.

3

D. Id. L. Civ. R. 7.1(c)(1) provides in part:
The responding party shall serve and file a response brief . . . . The responding party shall serve
and file with the response brief any affidavits, declarations..., copies of all photographs,
documentary evidence, and other supporting materials on which the responding party intends to
rely. (Emphasis added.)

MEMORANDUM ORDER AND DECISION- 5

A motion for summary judgment, however, cannot be granted solely because the
opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494–95
& n. 4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that
there are no material issues of fact). The court may grant an unopposed motion for summary
judgment if the movant’s papers are themselves sufficient to support the motion and do not
on their face reveal a genuine issue of material fact. See United States v. Real Property at
Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic
entry of judgment for moving party without consideration of whether motion and supporting
papers satisfy Fed. R. Civ. P. 56), overruled on other grounds by Degen v. United States, 517
U.S. 820 (1996); see also Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) (summary
judgment may not be granted simply because opposing party violated a local rule, if movant
did not meet burden of demonstrating absence of genuine issue for trial). Accordingly, this
Court will evaluate whether the Defendants’ Motion and supporting materials are sufficient
and do not facially reveal the existence of a genuine issue of material fact in this case.
2.

Impact of the Underlying State Court Ruling
As an initial matter, the Court has considered what preclusive effect, if any, arises

from the state court’s ruling in the underlying criminal matter granting the Patricks’ motion
to suppress. In their Complaint, the Patricks represent that the state court found no probable
cause existed to support a reasonable belief that a crime had been committed so as to justify
the warrantless seizure of the animals. (Dkt. 1 at 8-9.) The Defendants agree that the state

MEMORANDUM ORDER AND DECISION- 6

court granted the Patricks’ motion to suppress and found that the law enforcement officers
illegally seized the Patricks’ animals. (Dkt. 22 at 3.)
Section 1983 actions must afford full faith and credit to state judicial proceedings such
that res judicata and other preclusion doctrines may operate to limit or exclude causes of
action in federal court. See Allen v. McCurry, 449 U.S. 90, 103–104 (1980); Strong v. Dep’t
of Corr., 2006 WL 47358, at *2 (D. Idaho 2006) (citations omitted). “To determine whether
a state judgment should have preclusive effect in a federal action, federal courts apply the
state’s rules governing preclusion.” Strong, 2006 WL 47358, at *2 (citation omitted). The
Idaho Supreme Court has stated that “Res judicata is comprised of claim preclusion (true res
judicata) and issue preclusion (collateral estoppel). Under principles of claim preclusion, a
valid final judgment rendered on the merits by a court of competent jurisdiction is an
absolute bar to a subsequent action between the same parties upon the same claim.” Lohman
v. Flynn, 78 P.3d 379, 386 (Idaho 2003) (citations omitted); see also Coeur d'Alene Tribe v.
Asarco Inc., 280 F.Supp.2d 1094, 1117-19 (D. Idaho 2003) (“Although the literal definition
of the term res judicata is expansive enough to cover both preclusion of relitigation of the
same cause of action and relitigation of the same issue, the modern tendency is to refer to the
aspect of the doctrine that precludes relitigation of the same issue in a separate cause of
action as collateral estoppel, and to refer to that aspect preventing relitigation of the same
cause of action as res judicata.”) (quotations and citations omitted)).

MEMORANDUM ORDER AND DECISION- 7

“Res judicata thus applies to protect litigants from the burden of litigating the same
cause of action with the same party or its privity.” Coeur d'Alene Tribe, 280 F.Supp.2d 1094,
1117-19 (D. Idaho 2003) (citing Hindmarsh v. Mock, 57 P.3d 803 (Idaho 2002)). Res
judicata “bars not only subsequent relitigation of a claim previously asserted, but also
subsequent relitigation of any claims relating to the same cause of action which were actually
made or which might have been made.” Lohman, 78 P.3d at 386 (citing Hindmarsh, 57 P.3d
at 805 (citations omitted)). For Res judicata to preclude litigation the following requirements
must be met: (1) the same claim or cause of action arising out of the same facts must be
involved in both suits; (2) there must be a final judgment on the merits in the prior action;
and (3) the parties in the instant action must be the same as or in privity with the parties in
the prior action in question. Coeur d’Alene Tribe, supra (citations omitted). “The purposes
of these judicially created rules are to conserve judicial resources, protect litigants from
multiple lawsuits, and foster certainty and reliance in legal relations.” Id. (citation omitted).
As to collateral estoppel, the Idaho Supreme Court has delineate five factors that
“must be considered in determining whether collateral estoppel will act as a bar”:
1) the party against whom the earlier decision was asserted had a full and fair
opportunity to litigate the issue decided in the earlier case; 2) the issue decided
in the prior litigation was identical to the issue presented in the present action;
3) the issue sought to be precluded was actually decided in the prior litigation;
4) there was a final judgment on the merits in the prior litigation; and 5) the
party against whom the issue is asserted was a party or in privity with a party
to the prior litigation.
Lohman, 78 P.3d at 386 (citation omitted).

MEMORANDUM ORDER AND DECISION- 8

The Defendants in this case argue the state court’s ruling on the Patricks’ motion to
suppress in the underlying criminal case has no preclusive effect here because there is no
privity; asserting Deputy Hemphill and Detective Rivera were not parties to the state court
proceedings and, therefore, did not have a full and fair opportunity to litigate the issues
presented in that case. (Dkt. 22 at 7-8.) The Court agrees.
Neither Deputy Hemphill or Detective Rivera were parties to the criminal case against
the Patricks. As such, they were not represented by counsel in those proceedings, had no
individualized personal interest in the outcome of the criminal proceeding, had no control
over the criminal proceeding, and were not bound by the outcome. See e.g. Knott v. Sullivan,
418 F.3d 561, 568 (6th Cir. 2005) (applying Ohio state law); Adams v. Nocon, No. CIV. S07-02083 FCD EFB, 2009 WL 799278, at *4 (E.D. Cal. Mar. 23, 2009). Because there is no
privity between the state criminal case and this civil action, the Court finds that the
underlying state court ruling on the Patricks’ Motion to Suppress has no preclusive effect in
this case.
3.

Section 1983 Claim
Congress has created a cause of action against private individuals who, while acting

under color of law, violate the constitutional rights of private citizens. Section 1983 provides
in pertinent part:
Every person who, under color of any statute, […] subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivations of any rights, privileges or immunities
secured by the Constitution and laws, shall be liable to the party injured.

MEMORANDUM ORDER AND DECISION- 9

42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is instead a
vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions
by state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To
establish a prima facie case under 42 U.S.C. § 1983, Plaintiffs “must adduce proof of two
elements: (1) the action occurred ‘under color of law’ and (2) the action resulted in a
deprivation of a constitutional right or a federal statutory right.” Souders v. Lucero, 196 F.3d
1040, 1043 (9th Cir. 1999) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). In this case
the first requirement is not in dispute. Police officers carrying out their duties act under color
of law. Thus it is the second requirement that is at issue here. The Patrick’s contend that the
constitutional rights violated in this case are the right to: be free from unreasonable search
and seizure, substantive and procedural due process, and equal protection. (Dkt. 1.) The
Complaint also asserts a claim for municipal liability. Defendants maintain that no rights
were violated.
The rights claimed to have been violated here are protected by the federal Constitution
in the Fourth and Fourteenth Amendment guarantees against unlawful seizure and due
process. The question presented in this case is whether those constitutional rights were
violated in this case and, if so, whether the Defendants are entitled to qualified immunity.
Such questions are appropriate for summary judgment since the doctrine, if applicable,
confers immunity from the suit itself. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing
Anderson v. Creighton, 483 U.S. 635, 640 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)).
MEMORANDUM ORDER AND DECISION- 10

A)

Legality of the Search and Seizure

The Defendants here argue no constitutional violation occurred in this case because
the officers had probable cause to seize the animals. (Dkt. 22 at 9.)
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” U.S. CONST. amend. IV. Individuals have the right to be free from unreasonable
searches in those places where the individual has an objectively reasonable legitimate
expectation of privacy in the area searched. See United States v. $40,955.00 in U.S.
Currency, 554 F.3d 752, 756 (9th Cir. 2009) (citing Rakas v. Illinois, 439 U.S. 128, 140
(1978)). This determination involves a two part inquiry: 1) whether the plaintiffs show they
have a reasonable expectation of privacy in the areas searched or items seized; and 2)
whether the plaintiffs show that society is prepared to accept the expectation of privacy as
objectively reasonable. United States v. Hoey, 983 F.2d 890, 892 (9th Cir. 1993). Here,
taking the facts of the Complaint as true, the property in question is the Patricks’ residence.
As such, the Patricks clearly had a legitimate expectation of privacy in the areas subject to
the search in this case.4

4

This is not a case involving the open fields doctrine. See e.g. Dunham v. Kootenai Cnty., 690
F.Supp.2d 1162 (D. Idaho 2010). The open fields doctrine stands for the proposition that the Fourth
Amendment’s protection against warrantless searches does not extend to open fields that are usually
accessible to the public as “no expectation of privacy legitimately attaches to open fields.” Oliver v.
United States, 466 U.S. 170, 177-80 (1984) (noting that even putting up a fence or a no trespassing sign
does not create a legitimate expectation of privacy in open fields); cf. United States v. Dunn, 480 U.S.
294, 301 (1987) (the Fourth Amendment does protect the area harboring the intimate activity associated
with the sanctity of a man's home and the privacies of life).

MEMORANDUM ORDER AND DECISION- 11

Where, as here, the Fourth Amendment’s protections attach, “[a]ny ‘place to be
searched, and the persons or things to be seized’ must be particularly described, and be
supported by oath or affirmation and probable cause shown before a warrant may issue.”
United States v. Scott, 705 F.3d 410, 416 (9th Cir. 2012) (quoting U.S. CONST. amend. IV).
“Searches conducted without a warrant, thus, ‘are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.’”
Id. (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
One such exception is the plain-view rule which allows a law enforcement officer to
lawfully seize evidence “which was in plain view and which the officer had probable cause
to believe was evidence of a crime.” Maryland v. Buie, 494 U.S. 325, 330 (1990). “To fall
within the plain view exception, two requirements must be met: the officers must be lawfully
searching the area where the evidence is found and the incriminatory nature of the evidence
must be immediately apparent.” Dunham v. Kootenai Cnty., 690 F.Supp.2d 1162, 1173 (D.
Idaho 2010) (quoting United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005))
(citations omitted).
As to the first element of the plain view exception, Deputy Hemphill was at the
property in response to a call for a child welfare check. (Dkt. 22-5 at ¶ 6, Ex. A.) The report
was an anonymous complaint regarding children living on the property without power,
running water, or bathroom facilities. Upon arriving at the residence on January 7, 2009,
Deputy Hemphill found two mobile home trailers. He approached each trailer in an effort to
locate any individuals at the residence as a part of his investigation of the child welfare
MEMORANDUM ORDER AND DECISION- 12

check. In doing so, Deputy Hemphill walked next to the animal pens and made his initial
observations of the animals that prompted him to call Detective Rivera and eventually led
to the seizure of the animals at issue in this case. Based on these undisputed facts, the Court
finds as a matter of law that Deputy Hemphill’s entry upon the property and resulting search
was lawful. Deputy Hemphill was lawfully upon the property for purposes of responding to
the child welfare check and acted appropriately in approaching each of the trailers in an
effort to accomplish that task. Thus, he was properly and lawfully in a position to see the area
where the animals were located in plain view and the circumstances surrounding the animals
care.
The second element of the plain view exception is satisfied when an officer has
probable cause to associate the property with criminal activity. Dunham, 690 F.Supp.2d at
1174 (citations omitted). “The determination of whether the officers had probable cause to
believe that the items seized were illegal, unlawful, or associated with criminal activity is
objective, but we apply it to the ‘actual and/or perceived belief of the law enforcement officer
as he ... engages in search and seizure.’” Id. (quoting United States v. Prim, 698 F.2d 972,
975 (9th Cir. 1983)). “This standard does not require the officers to know that the item seized
is illegal.” Id. “The probable cause standard is a flexible, common-sense approach “requiring
only that the facts available to the officer would warrant a man of reasonable caution in the
belief that certain items may be contraband ... or useful evidence of a crime.” Id. (quoting
United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996)).

MEMORANDUM ORDER AND DECISION- 13

In this case, the observations of the animals’ conditions as noted by the responding
officers and investigator, which are undisputed by the Patricks, reveals that the incriminatory
nature of the evidence was immediately apparent. (Dkt. 22-5.) The condition of the animals
was generally poor in that they were unmaintained, thin, and underweight. Furthermore, there
was no apparent source of food, water, or shelter for the animals. Given these facts, it was
reasonable for the officers to believe that the animals were evidence of the crime of animal
cruelty and/or neglect under Idaho Code § 25-3504 and Idaho Code § 25-3511. Under those
provisions, law enforcement officers have the authority to take custody of animals subject
to cruel treatment. Idaho Code §25-3504 states that:
Every person who is cruel to any animal, or who causes or procures any animal
to be cruelly treated, or who, having the charge or custody of any animal either
as owner or otherwise, subjects any animal to cruelty shall, upon conviction,
be punished in accordance with section 25-3520A, Idaho Code. Any law
enforcement officer or animal care and control officer, subject to the
restrictions of section 25-3501A, Idaho Code, may take possession of the
animal cruelly treated, and provide care for the same, until final disposition of
such animal is determined in accordance with section 25-3520A or 25-3520B,
Idaho Code.5
5

Idaho Code § 25-3501A states:
(1) Law enforcement agencies and animal care and control agencies that provide law enforcement or
animal care and control services to a municipality or county, may enforce the provisions of this chapter in
that municipality or county.
(2) Animal care and control officers enforcing this chapter shall comply with the same constitutional and
statutory restrictions concerning the execution of police powers imposed on law enforcement officers who
enforce this chapter and other criminal laws of the state of Idaho.
(3) In cases where production animals are subject to a violation of section 25-3504, 25-3505 or 25-3511,
Idaho Code, law enforcement agencies and animal care and control agencies shall not:
(a) Enforce section 25-3504, 25-3505 or 25-3511, Idaho Code, without first obtaining an inspection and
written determination from a department investigator that a violation of one (1) or more of the sections
has occurred or is occurring; or
(b) Take a production animal from a production animal facility, pasture, or rangeland for a violation of
section 25-3504, 25-3505 or 25-3511, Idaho Code, without first obtaining an inspection and written
determination from a department investigator that such action is in the best interest of the animal.
MEMORANDUM ORDER AND DECISION- 14

The Idaho Code defines cruelty to mean any or all of the following:
(a) The intentional and malicious infliction of pain, physical suffering, injury
or death upon an animal;
(b) To maliciously kill, maim, wound, overdrive, overload, drive when
overloaded, overwork, torture, torment, deprive of necessary sustenance, drink
or shelter, cruelly beat, mutilate or cruelly kill an animal;
(c) To subject an animal to needless suffering, inflict unnecessary cruelty,
drive, ride or otherwise use an animal when same is unfit;
(d) To abandon an animal;
(e) To negligently confine an animal in unsanitary conditions or to negligently
house an animal in inadequate facilities; to negligently fail to provide
sustenance, water or shelter to an animal.
Idaho Code § 25-3502(5). Likewise, under federal law, an officer may seize evidence of a
crime that is in plain view without a warrant if the officer is lawfully present in the place
from which they view the evidence. Horton v. California, 496 U.S. 128, 136–137 (1990).
Here, the Defendants have supplied the reports of the responding officers and
investigator that were filed in the underlying state matter as well the Affidavits of all of the
responding individuals that were filed in support of the Motion in this case. (Dkt. 22-3
through 22-6.) These materials reporting the circumstances as they existed on January 7,
2009 are all consistent with and corroborate one another. The reports noted that the driveway
had been plowed within the last day or two and there were also several dogs running loose
on the property that “appeared to be at a decent weight,” “healthy,” and had access to one
of the trailers and water but no food. The officers reported seeing empty bags of grain in the
bed of a truck on the property.

MEMORANDUM ORDER AND DECISION- 15

The officers initially observed: three horses in a pen, a llama in a small pen, and a
pony in the pen next to the llama. Upon further inspection, the officers reported seeing a
deceased horse lying in the pen with the pony whose body was covered in snow with its neck
and head visible. They noted that the ears of the deceased horse “had been eaten away by
something.” The pony “appeared to be a decent weight, but there was no signs of food or
water for the pony,” it was eating the wood post by the gate and eating on a black tarp in the
pen, and its hooves appeared long and unmaintained. Both the deceased horse and pony had
halters on.
The llama had no water source and only a handfull of grain in a small hole in the
snow. The area in which the llama was able to move in was covered in fecal matter, as was
the llama’s feet and legs. The report stated that the llama was unable to get out of its fecal
matter without going into the deep untouched snow. Deputy Hemphill reported that the llama
was “trembling and wet, had no water, and only a scattering of food remnants. It also had no
shelter and the pen was covered in feces.” (Dkt. 22-5 at ¶ 10.) Investigator Larsen stated that
the llama’s “feet were sore, as it alternated raising its feet.” (Dkt. 22-4 at ¶ 7.)
In the larger pen, the officers observed four horses which were generally underweight,
thin, showing their ribs and spine, appeared to be losing mass in their rump, and had
long/unmaintained feet. The officers noted that the horses had no feed or water source and
were eating a piece of wood.

MEMORANDUM ORDER AND DECISION- 16

After inspecting the animals, Investigator Larson made a written determination that
the animals had been neglected and recommended that the Boise County Sheriff’s Office take
possession of the animals. (Dkt. 22-6 at ¶ 16.) In her Affidavit, Investigator Larson states that
she believed the animals had “gone without appropriate care, and that it was neglectful to
house the animals without providing appropriate food and water” and “there was no
appropriate shelter for the animals to protect them from the winter weather.” (Dkt. 22-4 at
¶¶ 17, 20.) Deputy Hemphill relayed these observations and conditions to the on-duty
prosecutor at the Bonner County Prosecutor’s Office who advised that there was no need to
obtain a warrant to seize the animals. (Dkt. 22-6 at ¶ 17.) Based on all of their observations
and the information known to them at the time, the officers determined they had probable
cause to seize the animals and proceeded to do so. Detective Rivera contacted Dr. Cherise
Neu, a veterinarian, to assist with the removal. Dr. Neu arrived and aided in the
transportation of the animals and also examined the deceased horse and opined it had died
from “cast” exposure, dehydration, and emaciation. (DKt. 22-6 at¶ 19.)
While they were waiting to load the second set of animals for removal, Ms. Patrick
arrived at the residence and stated the family was “struggling to buy feed” for the animals,
there was no running water on the property and they had been hauling water in for the
animals, she had fed the last of the food to the animals today and that hay was coming
tomorrow. Ms. Patrick also stated that the deceased horse had died late the week before but
did not know why and that they had plans to remove it.

MEMORANDUM ORDER AND DECISION- 17

Based upon these undisputed facts, the Court finds that the Defendants’ warrantless
seizure of the animals did not violate the Fourth Amendment in this case. The officers had
probable cause to believe, based on the conditions they observed, that the animals were in
danger and were evidence of the crime of animal neglect under Idaho law. Thus, the officers
were authorized to seize the animals as evidence of a crime without a warrant. The Patricks
do not dispute these facts and observations of the responding personnel nor point to any other
evidence giving rise to a disputed fact. As such, the Court finds as a matter of law that there
was no constitutional violation here as the search and seizure were both lawful.
B)

Due Process Claims

The Complaint generally alleges violations of the Patricks’ due process rights as a
result of the removal of the animals from their residence. (Dkt. 1 at ¶ 16.) The Defendants
argue they are entitled to summary judgment on the claim because the Patricks were provided
with the process afforded to them following the seizure of their animals. (Dkt. 22 at 18-20.)
To prevail in a § 1983 claim for a procedural due process violation, a plaintiff must
show deprivation of a protected property or liberty interest without being given due process.
Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972). “A section 1983 claim based upon
procedural due process ... has three elements: (1) a liberty or property interest protected by
the Constitution; (2) a deprivation of the interest by the government; (3) lack of process.”
Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Here, the Patricks can
likely satisfy the first and second prongs of the claim as the loss of their animals deprives
them as owners of a property interest that may be taken from them only in accordance with
MEMORANDUM ORDER AND DECISION- 18

the Due Process Clause and the animals were taken by agents of the state. As to the third
prong, however, the Court finds the Patricks have failed to identify any genuine issue of
disputed fact that they were denied lack of process.
Before the state may take an individual’s property, due process requires “notice
reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.” Robinson
v. Hanrahan, 409 U.S. 38, 39–40 (1972) (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950)). “An unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the
loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393
(1984) (citations omitted). Here, the Idaho Code provides for an adequate post-deprivation
remedy. See Idaho Code § 25-3520B. Thus, where the state provides a meaningful
postdeprivation remedy, only authorized, intentional deprivations constitute actionable
violations of the Due Process Clause.
An authorized deprivation is one carried out pursuant to established state procedures,
regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also
Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). “‘Ordinarily, due
process of law requires [notice and] an opportunity for some kind of hearing prior to the
deprivation of a ... property interest.’” Halverson v. Skagit Cnty., 42 F.3d 1257, 1260 (9th
Cir. 1995) (internal quotations and citations omitted).
MEMORANDUM ORDER AND DECISION- 19

Here, under either theory, the Patricks cannot show any genuine issue of material fact
that exists to support this claim. The Patricks’ contention that their animals were unlawfully
taken by the officers would be an unauthorized taking. That claim is not actionable under
§ 1983 because there are meaningful post-deprivation remedies available. As determined
above, the officers had probable cause to properly seize the animals. Upon that seizure, the
Patricks were then entitled to and so afforded the forfeiture process provided for under Idaho
Code § 25-3520B. The Defendants have attached the notices provided to the Patricks in
relation to the forfeiture of the animals and the Notice of Hearing on the forfeiture
proceedings. (Dkt. 22-3.) A forfeiture hearing was held on April 4, 2009 and continued to
May 21, 2009. (Dkt. 22-3, Ex. E, D.) Ultimately, the charges against the Patricks were
dismissed and their animals were returned to them.
Similarly, even if the taking of the animals was an authorized taking - i.e. taken
pursuant to established state procedures - the Patrick’s claim is problematic. As long as the
property was seized pursuant to established state regulations or statutes, and performed in the
normal manner prescribed by law, no due process violation has occurred. Authorized
deprivations of property are permissible if carried out pursuant to a regulation that is
reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89
(1987). Here, as determined above, the officers lawfully seized the animals in accordance
with the requirements of the applicable Idaho Code. Furthermore, it is undisputed that the
Patricks were afforded meaningful post-deprivation remedies which ultimately resulted in

MEMORANDUM ORDER AND DECISION- 20

the animals being returned to them. There was no violation of the Patricks’ due process
rights.
Based on the foregoing, the Court finds the Defendants have shown the Patricks were
afforded meaningful post-deprivation remedy consistent with the procedural due process
rights that the Patricks were entitled to. The Patricks have not disputed these facts nor
pointed to an genuine issue of material fact on this claim. As such, the Court finds that the
Defendants’ moving papers are sufficient to have facially demonstrated that there is no
genuine issue of material fact and that judgment as a matter of law is appropriate on this
claim.
C)

Equal Protection Claims

The Complaint also makes a general allegation of a violation of the Patricks’ equal
protection rights. (Dkt. 1.) “To succeed on a § 1983 equal protection claim, the plaintiffs
must prove that the defendants acted in a discriminatory manner and that the discrimination
was intentional.” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000)
(citation omitted). There is no allegation or evidence from which to conclude that the
Defendants in this case acted in a discriminatory manner or that any such discrimination was
intentional. The Complaint makes no allegation that the Patricks were treated differently
from other similarly situated individuals. Accordingly, the Court finds summary judgment
on this claim is appropriate.

MEMORANDUM ORDER AND DECISION- 21

D)

Municipal Liability

Finally, the Complaint raises a claim against Bonner County, a/k/a the Bonner County
Sheriff’s Department. The Supreme Court has held that “local governing bodies […] can be
sued directly under § 1983 for monetary, declaratory, or injunctive relief where […] the
action that is alleged to be unconstitutional implements or executes a policy, statement,
ordinance, regulation, or decisions officially adopted and promulgated by that body’s
officers.” Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658, 690 (1978). In
order to hold a municipality liable the Patricks must show evidence “that a constitutional
deprivation was directly caused by a municipal policy.” Nadell v. Las Vegas Metro. Police
Dept., 268 F.3d 924, 929 (9th Cir. 2001) (citations omitted). The burden is on the Patricks
to show a policy or custom on the part of the Bonner County Sheriff’s Department, which
can be proven by the municipality’s negligence in training or failure to respond to
constitutional violations. Gilette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). If a
plaintiff cannot show evidence of a direct policy or a widespread custom, the plaintiff “may
attempt to prove the existence of a custom or informal policy with evidence of repeated
constitutional violations for which the errant municipal officials were not discharged or
reprimanded.” Gilette 979 F.2d at 1349 (citing McRae v. Shimoda, 795 F.2d 780, 84 (9th Cir.
1986)).6
6

The Ninth Circuit established the elements that a plaintiff would have to show in order to
evidence a custom through deliberate indifference:
To impose liability on a local governmental entity for failing to act to preserve
constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a
constitutional right of which he was deprived; (2) that the municipality had a policy; (3)
that the policy “amounts to deliberate indifference” to the plaintiff’s constitutional right;
MEMORANDUM ORDER AND DECISION- 22

However, the Supreme Court has made clear that “a municipality cannot be held liable
solely because it employs a tortfeasor.” Monell, 436 U.S. at 691 (emphasis in original).
Where, as here, there is no constitutional violation by the officers, there can be no municipal
liability. The Supreme Court has held that no principle “authorizes the award of damages
against a municipal corporation when […] the officer inflicted no constitutional harm.” City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). This rule applies regardless of the actual
policies of the municipality. Id. (“If a person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the departmental regulations might have
authorized the use of constitutionally excessive force is quite beside the point.”) (emphasis
in original). Because the Court has concluded above that no constitutional violation occurred,
the Motion will be granted as to the claims against the Bonner County Sheriff’s Department.
E)

Qualified Immunity

While § 1983 provides a cause of action against police officers for constitutional
violations that they might have committed, they are also entitled to qualified immunity from
§ 1983 claims. “The Supreme Court has held that ‘it is inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude that probable cause is
present.’” Crowe v. Cnty. of San Diego, 608 F.3d 406, 433 -434 (9th Cir. 2010) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “When that happens, the officials ‘should
not be held personally liable.’” Id. Qualified immunity operates to “shield an officer from
and (4) that the policy is the “moving force behind the constitutional violation.”
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378,
384-91 (1989). (citations omitted).
MEMORANDUM ORDER AND DECISION- 23

personal liability when an officer reasonably believes that his or her conduct complies with
law.” Pearson, 555 U.S. at 244; see also San Jose Charter of Hells Angels Motorcycle Club
v. City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005) (“Qualified immunity serves to shield
government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Similarly,
the Ninth Circuit has “held that officers are immune from suit ‘when they reasonably believe
that probable cause existed, even though it is subsequently concluded that it did not, because
they ‘cannot be expected to predict what federal judges frequently have considerable
difficulty in deciding and about which they frequently differ among themselves.’” Crowe,
608 F.3d at 434 (citations omitted).
The qualified immunity analysis follows a two-pronged analysis first announced in
Saucier v. Katz, 533 U.S. 194 (2001):
First, taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officers’ conduct violated a constitutional right?
Second, if so, was that right clearly established? The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted. This inquiry is wholly objective and is undertaken in
light of the specific factual circumstances of the case.
San Jose Charter of Hells Angels, 402 F.3d at 971 (internal quotations and citations omitted).
The court in Pearson has since rejected the mandatory two-step approach. Peterson, 129
S.Ct. at 818; see also Nampa Classical Acad. v. Goesling, 714 F.Supp.2d 1079, 1091 at n.

MEMORANDUM ORDER AND DECISION- 24

15 (D. Idaho 2010). Courts are now free to decide either question in whatever order is most
appropriate given the circumstances.
Here, the Court has determined above that no constitutional violation occurred. The
Defendants’ moving papers are sufficient to establish that, on their face, there does not exist
any genuine issue of material fact in this case. The officers were lawfully upon the property,
the search was reasonable, and based on the officers’ observations it was reasonable for them
to believe they had probable cause to seize the animals. Again, the Patricks have not disputed
the facts giving rise to that determination nor pointed to any genuine issue of fact that exists.
Therefore, the Court finds the Defendants are entitled to qualified immunity.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Defendants’ Motion for
summary judgment (Dkt. 22) is GRANTED as to all of Plaintiffs’ claims. Counsel for
Plaintiff

shall

submit

a

proposed

judgment

to

the

Court’s

[e-mail], for its review and entry.

DATED: June 13, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM ORDER AND DECISION- 25

email

box,