Birchwood Conservancy v. Webb et al
Filing
199
OPINION & ORDER: 1) motion for summary judgment filed by Defendants Sheriff Tony Hampton and Deputy Sheriff Ben Jones 130 is GRANTED; 2) Birchwood's claims against Defendants Hampton and Jones are DISMISSED with prejudice; 3) motion for summar y judgment filed by Defendant Jeremy Webb 172 is GRANTED;4) Birchwood's claims against Defendant Jeremy Webb are DISMISSED with prejudice; 5) Kentucky Farm Bureau's claims against Webb are DISMISSED without prejudice for lack of subject matter jurisdiction; 6) all pending motions are DENIED as moot; and 7) this matter is DISMISSED and STRICKEN from the Court's active docket. Signed by Judge Karen K. Caldwell on 12/4/2014. (STC)cc: COR,D,JC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
at LEXINGTON
CIVIL ACTION NO. 5:12-cv-335-KKC
BIRCHWOOD CONSERVANCY d/b/a
WORLD HERITAGE ANIMAL GENETIC
REPOSITORY INSTITUTE,
V
PLAINTIFF,
OPINION & ORDER
JEREMY WEBB, et al.,
DEFENDANTS.
**********
This matter is before the Court on the motion for summary judgment filed by
Defendants Sheriff Tony Hampton and Deputy Sheriff Ben Jones (DE 130) and the motion
for summary judgment filed by Defendant Jeremy Webb (DE 172).
The plaintiff asserts constitutional claims against Sheriff Hampton and Deputy
Jones, arguing that its constitutional rights when a neighbor shot two of its goats. A
threshold issue on the constitutional claims is whether the deputy can be held liable for the
acts of the neighbor. Because Deputy Jones did not assist in, coerce or significantly
encourage the goat shooting, neither he nor Sheriff Hampton may be held liable for any
constitutional violation.
The plaintiff asserts state-law claims against its neighbor, Jeremy Webb, who shot
the goats. The critical issue for that claim is whether the plaintiff can prove any damages
that it suffered as a result of the shooting. Because the plaintiff concedes it cannot prove
the only damages alleged in its complaint and the Court has ruled that it may not now
allege other kinds of damages, the plaintiff’s claims against Webb must be dismissed.
I.
Background
In its complaint, Birchwood states that it operates a non-profit research facility in
Georgetown, Kentucky (DE 1). According to Birchwood, its facility is used for research in
Animal Genetic Resource Biodiversity and it works with the United Nations Food and
Agriculture Organization, the United Nations Environmental Programme, and Convention
on Biological Diversity to aid developing nations and women farmer stakeholders build
capacity through sustainable agriculture.
Birchwood alleges that on November 8, 2011, a herd of experimental goats escaped
Birchwood’s facility through a breach in the fence line and wandered onto Defendant
Jeremy Webb’s neighboring farm. Webb then called the Scott County Sheriff’s Department
and complained that his neighbor’s goats had entered his property. Defendant Deputy Ben
Jones responded to the call and arrived at Webb’s property.
Jones confirmed that there were approximately 30 goats on Webb’s property and,
according to Birchwood, discussed with Webb “the legal issues of exterminating a couple of
the goats as a deterrent to future instances of letting their animals run at large.”
Birchwood then alleges that, as Deputy Jones was leaving the farm, he heard gunshots.
Upon returning to Webb, Deputy Jones discovered that Webb had shot and killed two of the
goats. Webb does not deny that he shot the goats.
According to Birchwood, these two goats were no ordinary goats. Rather, Birchwood
alleges that the two goats killed by Webb were rare hybrid goats which were participants in
the World Heritage Animal Genetic Repository global conservation initiative in
collaboration with the United Nations Food and Agriculture Organization, Interlaken
Declaration Global Plan of Action for Animal Genetic Resource Conservation.
2
Birchwood asserts claims against three defendants: Webb, Deputy Jones, and Sheriff
Tony Hampton, who is the Sheriff of Scott County, Kentucky. As to Webb, Birchwood
asserts state-law claims for breach of “a duty to refrain from inflicting wanton or willful
injury” on the goats and a claim for conversion.
As to Deputy Jones, Birchwood asserts a constitutional claim under 42 U.S.C.
§ 1983, alleging that Deputy Jones either gave his approval or encouraged Webb to shoot
the goats and that, in doing so, violated Birchwood’s Fourth Amendment and due process
rights.
As to Sheriff Hampton, Birchwood asserts that he is liable for Deputy Jones’
constitutional violation under KRS § 70.040, a state statute providing that “[t]he sheriff
shall be liable for the acts or omissions of his deputies; except that, the office of sheriff, and
not the individual holder thereof, shall be liable under this section.” KRS § 70.040. The
Court has construed the complaint to assert claims made against Sheriff Hampton only in
his official capacity as the Scott County Sheriff and not in his individual capacity. (DE 194,
Opinion at 6.)
II.
Analysis
A. Constitutional claims
Birchwood asserts constitutional claims under 42 U.S.C. § 1983 against Jones.
Section 1983 provides a cause of action against any person who, while acting “under color”
of state law, deprives an individual of federally guaranteed rights. 42 U.S.C. § 1983. There
is no question Jones was acting under color of state law when he arrived at Webb’s property
on the date that Webb shot the goats. The issue is whether Jones did anything that
deprived Birchwood of its constitutional rights.
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Birchwood alleges that its constitutional rights were violated by the goat shooting.
Again, Jones did not shoot the goats. Birchwood’s neighbor, Webb – a private citizen – shot
the goats. Governmental actors “normally can be held responsible for a private decision
only when [they have] exercised coercive power or [have] provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to be that of
the State.”
Hensley v. Gassman, 693 F.3d 681, 688 (6th Cir. 2012) (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)). “Mere approval of or acquiescence in the initiatives of
a private party is not sufficient to justify holding the State responsible for those initiatives
under the terms of the Fourteenth Amendment.” Id.
Thus, the issue is whether Jones coerced Webb into shooting the goats or provided
such significant encouragement to Webb that Jones should be deemed to have actually
committed the act.
From 2004 until the date that Webb shot the goats, Webb called the Scott County
Sheriff’s Department multiple times to report that Birchwood’s goats had entered his
property and were causing damage (DE 130-1, Mem. at 4; DE 130-2, Jones Aff., ¶ 5; DE
130-6, Incident Reports.) But no party has pointed to any evidence that Deputy Jones and
Webb had any interaction other than on the evening that the goats were shot.
Jones states that on that date he was called to Webb’s farm “for the purpose of
investigating a report that animals were running at large.” (DE 130-2, Jones Aff., ¶ 1.) He
states that arrived at the farm at about 8:15 p.m. Jones states that he went to the back of
the farm with Webb’s wife and three children in Webb’s Suburban because his cruiser could
not negotiate the road to the rear of the farm. (DE 130-1, Mem. at 7.)
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Jones states that when he arrived at the back of the farm, Webb informed him that
approximately 30 goats had entered his property from the Birchwood farm and that they
were destroying Webb’s property. (DE 130-2, Jones Aff., ¶ 2.) In the incident report, Jones
states that he attempted to contact the residents of the Birchwood farm – Evan Blakeny
and Lucinda Christian – by phone but was not able to reach them. He states that he also
went to the residence but was unable to make contact with anyone. (DE 130-7, Incident
Report.) Blakeny and Christian also serve on the Birchwood Board of Directors. (DE 148,
Response at 2.)
Jones states in his affidavit that he returned to his cruiser and that Webb called him
to report “an incident at the rear of the farm.” (DE 130-2, Jones Aff., ¶ 4.) In his incident
report, Jones states that, while driving back to the rear of the farm, he heard three gun
shots. (DE 130-7, Incident Report.) He states that Webb told him he shot one goat with one
round and the other goat with two rounds. (DE 130-7, Incident Report.)
As to any conversation that occurred between Jones and Webb prior to Webb
shooting the goats, Jones states in an affidavit that Webb asked Jones “what his legal
rights were with respect to any action that Webb could take against the intruding goats.”
(DE 130-2, Jones Aff., ¶ 3.) This is also consistent with Webb’s deposition testimony.1 Webb
testified that he asked Jones “if I was within my rights to exterminate the goats because
they were destroying my property.” (DE 130-1, Mem. at 8; DE 186-Webb Dep. at 57-58.)
1
All portions of the deposition testimony cited by the parties have not been filed in the record.
Nevertheless, both parties quote verbatim relevant portions of the depositions with no objections.
Accordingly, for purposes of this motion, the Court has relied on the party’s characterizations of the
relevant content of the depositions. No party disputes any portions of the depositions that the Court
has relied on for this opinion.
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Jones states in his affidavit that, in response to Webb’s question, Jones informed
Webb that he “could take reasonable measures to protect his property.” (DE 130-2, Jones
Aff., ¶ 3.) But Jones states that he also told Webb he would contact the Scott County
Attorney’s office to inquire further as to Webb’s rights. (DE 130-2, Jones Aff., ¶ 3.)
Webb testified that Jones responded that “as far as [Jones] knew, [Webb] was well
within [his] rights to destroy the animals if they were destroying [Webb’s] property.” (DE
130-1, Mem. at 8; DE 186-2, Webb Dep. at 58.) But Webb also testified that he did not
know Jones’ exact words. Webb testified that it was his understanding “that I was well
within my rights, as the county attorney had told me and the assistant county attorney.”
(DE 130-1, Mem. at 8; DE 186-2, Webb Dep. at 58.) Webb stated that, based on earlier
conversations with the county attorney’s office, he was “fairly certain” that he could shoot
the goats if they were destroying his property. (DE 130-1, Mem. at 8; DE 186-2, Webb Dep.
at 58.) Webb testified that no one specifically told him to “shoot the goats.” (DE 178-1,
Mem. at 4.) He testified that he told Jones before he shot the goats that he was considering
shooting the goats because of “the lack of resolutions with the – the court systems and
through civil court.” (DE 178-1, Mem. at 5.)
In his deposition, Jones testified that Webb asked him what he could do about the
goats because they were “eating on his trees” and that Jones told Webb “he had the right to
protect his property from being damaged or destroyed.” (DE 130-1, Mem. at 10.) He stated
that he then told Webb “let me see what I could do with speaking with the county attorney.”
Jones testified that he further cautioned that, “because it wasn’t the goats’ fault,” shooting
the goats “probably wasn’t the best option at that time.” (DE 130-1, Mem. at 10.)
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For purposes of this motion, the Court will assume that, before returning to his
cruiser, Jones told Webb he had a right to shoot the goats if they were damaging Webb’s
property. This is the version of events most favorable to Birchwood. The issue remains as to
whether informing Webb he could shoot the goats amounts to coercion or such significant
encouragement that Jones himself should be deemed to be the actor.
In Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012), the Sixth Circuit looked at
whether the repossession of an automobile by a private party could be attributed to two
deputy sheriffs, transforming the repossession into an unreasonable seizure. The court
began by noting that the deputies’ presence during the repossession solely to keep the peace
was “alone insufficient to convert the repossession into state action.” Id. at 689. But the
court explained that “the likelihood that state action will be found increases when officers
take a more active role in the possession.” Id. “At some point, as police involvement
becomes increasingly important, repossession by private individuals assumes the character
of state action.” Id. (quoting Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.1983)). State
action may be found where the officer’s “affirmative intervention, aid, intimidation, or other
use of power. . . converts him from a neutral third party to, in effect, an assistant of the”
private party. Id. (quoting Mitchell v. Gieda, 215 F. App’x 163, 165 (3d Cir.2007)).
The Hensley court noted that an officers’ conduct can facilitate a private party’s
action in various ways, “such as through active intervention and assistance.” Id. In
addition, “an officer’s conduct can facilitate a repossession if it chills the plaintiff’s right to
object.” Id. “A police officers’ arrival and close association with the creditor during the
repossession may signal to the debtor that the weight of the state is behind the repossession
and that the debtor should not interfere by objecting.” Id. at 690.
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In Hensley the Court found that the repossession constituted state action but the
deputies in that case “eventually broke the vehicle’s window and physically extracted the
possessor so that [the repo-man] could tow the vehicle away.” Id. at 684. The court
concluded this conduct “was not only active participation, but was instrumental to [the
repo-man’s] success.” Id. at 692.
Here, it is undisputed that Deputy Jones was not even present when Webb shot the
goats. Nor is it alleged that Deputy Jones had any direct involvement with shooting the
goats. He was not called to the scene to assist specifically in shooting the goats. Instead,
he was at the scene in response to Webb’s complaint that the goats were on his property.
Further, Deputy Jones had no interaction at all with Blakeny or Christian while at the
scene. None of the three was present when Webb shot the goats. Christian testified that
she could not remember ever speaking with Jones prior to the evening that Webb killed the
goats. (DE 130-1, Mem. at 10.) She was not aware that Jones had been to Webb’s farm
earlier in the evening. She knew only that he showed up after Webb shot the goats. (DE
130-1, Mem. at 10.) Thus, a jury could not find that Deputy Jones assisted in the shooting
of the goats by intimidating Blakeny or Christian.
Because there is no evidence that Jones assisted in, significantly encouraged, or
coerced the shooting of the goats, the constitutional claims against him under 42
U.S.C. § 1983 must be dismissed.
As to the § 1983 claim against Sheriff Hampton in his official capacity, it must also
be dismissed. With regard to a § 1983 claim, “[a] suit against an individual in his official
capacity is the equivalent of a suit against the governmental entity.” Matthew v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994). “Before a local government can be held liable for injuries
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under section 1983, . . . a plaintiff must show that his injuries were the result of some
‘policy or custom’ attributable to the governmental entity.” Leach v. Shelby Cnty. Sheriff,
891 F.2d 1241, 1245 (6th Cir.1989) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978)). Birchwood does not ever allege that the sheriff’s office or county government had a
custom or policy that caused the shooting of the goats.
Birchwood asserts that the sheriff’s office is liable under KRS § 70.040, which
provides that the office is liable for its deputy’s acts. Even if that statute were applicable to
a federal claim, the sheriff’s office is not liable here because Deputy Jones is not liable for
the shooting of the goats.
For these reasons, Birchwood’s federal claims must be dismissed.
B. State law claims
Remaining are Birchwood’s state-law claims against Webb. In its complaint,
Birchwood alleged that the replacement value of each goat is $95,000. (DE 1, Complaint, §
14.) That figure was based on the cost to clone the goats. But Birchwood now concedes that
it can offer no evidence to support the cost of cloning the goats. In a motion to amend its
complaint, Birchwood stated that, in the prior two months, animal geneticists had informed
it that cloning was not possible. (DE 147, Motion at 4.) Accordingly, Birchwood can produce
no evidence regarding the costs of cloning.
In the motion to amend the complaint, Birchwood requested that it be permitted to
redact the $95,000-per-goat damages allegation from the complaint and instead seek the
costs of restarting the program. In support of the motion, Birchwood cited a report of its
expert Dr. Mike Reed. In his report, Dr. Reed explained that the two goats that were killed
were “the only two breeding males” from the project and were the result of an 8-year
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breeding program aimed at producing two new goat breeds. (DE 134-4, Reed Report at 2.)
Dr. Reed stated that the loss of the two goats would force Birchwood to “begin the entire
breeding program from its beginning.” He estimated that the costs to restart the program
would be $1,740,771. Dr. Reed further opined that Birchwood would be required to relocate
the program from the Scott County property at a cost of $ 284,800 for a total cost to restart
the program of $2,330,800.
Dr. Reed stated that the goat-breeding project “would have provided genetic
materials to groups throughout the world that could use the genetics to improve herd
productivity.” Dr. Reed estimated that, “[i]f the result of this project would have increased
goat milk production by 0.5% in Africa the lost benefits from the death of the two goats
would be $6.5 million per year for at least eight years (when the restarted program is
completed and improved goat genetics are available.” Dr. Reed opined that the productivity
losses in Africa would total $ 52 million, which he discounted to $42.79 million. He opined
that the total loss to Birchwood was $44.81 million.
The Court ruled that it was simply too late for Birchwood to amend its damages
claim so drastically. The complaint in this matter was filed on November 5, 2012. The
motion to amend was filed May 29, 2014, which was more than a year after the April 18,
2013 deadline to amend pleadings contained in the Court’s scheduling order (DE 14). In its
motion to amend, Birchwood had not explained why it had taken more than 18 months
after the filing of the initial complaint to determine that cloning the goats was not actually
possible. (DE 194, Opinion.) The Court ruled that Birchwood could not amend its pleadings
at that stage of the litigation. Accordingly, Birchwood cannot present evidence to the jury
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regarding the costs of restarting the program or the $42.8 million in “lost benefits”
discussed in Dr. Reed’s opinion.
Birchwood has pointed to no other evidence of damages it would present at a trial of
this matter.2 For this reason, its claims against Webb must be dismissed.
That leaves the petition for declaratory judgment filed by the intervening plaintiff
Kentucky Farm Bureau Mutual Insurance Company, which issued a farm owners
insurance policy to Webb. Kentucky Farm asks for a declaration that the policy does not
cover Webb’s intentional shooting of the goats. (DE 69, Petition for Declaratory Judgment.)
The Court does not have subject matter jurisdiction over this claim. The Court can
adjudicate an intervening claim after dismissal of the underlying claim if the Court has
subject matter jurisdiction over it that is independent from its jurisdiction over the
underlying claim. Kelly v. Carr, 691 F.2d 800, 806 (6th Cir. 1980; Horn v. Eltra Corp., 686
F.2d 439, 440 (6th Cir. 1982) (stating that a “prerequisite of an intervention (which is an
ancillary proceeding in an already instituted suit) is an existing suit within the Court's
jurisdiction” but that “intervenors with an independent basis for jurisdiction may be treated
as stating a wholly separate claim.”)
It is clear from the face of the complaint that no such jurisdiction exists over
Kentucky Farm’s claim against Webb. The claim raises no federal question and Kentucky
Farm and Webb are both Kentucky citizens. Thus, diversity jurisdiction does not exist.
2
In fact, Webb has offered the only admissible evidence of damages in this case. That
evidence consists of the Kentucky Department of Agriculture’s Livestock and Grain Market Report
which indicates the average fair market value of goats sold in Kentucky is less than $300. (DE 172-5,
Report; DE 172-1, Mem. at 9.)
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III. Conclusion
For all these reasons, the Court hereby ORDERS as follows:
1) the motion for summary judgment filed by Defendants Sheriff Tony Hampton
and Deputy Sheriff Ben Jones (DE 130) is GRANTED;
2) Birchwood’s claims against Defendants Hampton and Jones are DISMISSED
with prejudice;
3) the motion for summary judgment filed by Defendant Jeremy Webb (DE 172) is
GRANTED;
4) Birchwood’s claims against Defendant Jeremy Webb are DISMISSED with
prejudice;
5) Kentucky Farm Bureau’s claims against Webb are DISMISSED without
prejudice for lack of subject matter jurisdiction;
6) all pending motions are DENIED as moot; and
7) this matter is DISMISSED and STRICKEN from the Court’s active docket.
Dated December 4, 2014.
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