Caroline's Kids Pet Rescue et al v. Lake Humane Society et al
Opinion and Order. Plaintiffs' Motion for Preliminary Injunction and Temporary Restraining Order (Related doc # 2 ) is denied. Defendant Jeff Greco's Motion to Stay (Related doc # 25 ) is granted. Case is removed from the active docket. Judge Christopher A. Boyko on 9/11/2017. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CAROLINE’S KIDS PET
RESCUE, et al.,
LAKE HUMANE SOCIETY, et al.,
CASE NO. 1:17CV297
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Plaintiffs’ Motion (ECF DKT #2) for
Preliminary Injunction and Temporary Restraining Order, as well as the Motion (ECF DKT
#25) of Defendant Jeff Greco to Stay. For the following reasons, Plaintiffs’ Motion for
injunctive relief is denied; but the stay is granted and the above-captioned case is removed
from the active docket.
Plaintiffs Tom and Judie Brown operate the non-profit organization, Caroline’s Kids
Pet Rescue, in Painesville, Ohio. The Rescue accepts and cares for abandoned, feral, ill, aged
and dying cats. Allegedly, on November 17, 2016, Defendant Lake Humane Society received
a complaint that cats at Caroline’s Kids were being mistreated. On November 28, 2016,
humane agent, Leanne Pike, and Lake Humane employee, Mandy Osborne, came to the
Caroline’s Kids premises to investigate the complaint. They received permission over the
phone from Judie Brown to enter and look at the facility, the animals and veterinary records.
Following Pike and Osborne’s investigation, Lake Humane obtained search warrants and
seized nearly 161 cats.
A county humane society is authorized by § 2931.18 of the Ohio Revised Code to
appoint an attorney to prosecute violations of law relating to the prevention of cruelty to
animals. On December 11, 2016, Lake Humane appointed Defendant, DanaMarie Pannella,
Esq., of the law firm Holland & Muirden, as special prosecutor on the Caroline’s Kids
investigation. Defendant Pannella reviewed the relevant reports, photos and post-seizure
veterinary diagnoses and determined that sufficient evidence existed to charge Plaintiffs Tom
and Judie Brown with Companion Animal Cruelty, in violation of Ohio Revised Code
§ 959.131, a Misdemeanor of the Second Degree. The parties could not reach an agreement
to avoid prosecution, which would have included the payment of restitution in the amount of
$9,000.00 to Lake Humane for the costs of rehabilitation and boarding of the cats. A
mandatory probable cause hearing was scheduled. The Browns obtained a continuance of the
first hearing and later, waived their right to a probable cause hearing. On February 14, 2017,
animal cruelty charges were filed against Tom and Judie Brown in Painesville Municipal
Court. Their cases remain pending.
On February 13, 2017, Plaintiffs Caroline Kids, Tom Brown, Judie Brown and others
filed the instant Complaint against Lake Humane, its Board and Officers, DanaMarie
Pannella, J. Jeffrey Holland and Officer Jeff Greco of the Mentor Police Department.
Plaintiffs seek redress of Fourteenth Amendment violations, a declaration of the
unconstitutionality of the Ohio statutory scheme for humane societies, and damages for fraud,
extortion and other activities by Lake Humane, a Racketeer Influence and Corrupt
Organization (“RICO”). On the same date, Plaintiffs filed their Motion (ECF DKT #2),
seeking a Court Order restraining all Defendants from the following:
1) Retaliation in any manner against all parties, Plaintiffs’ witnesses,
Plaintiffs’ employees, attorneys, the families of all such individuals and/or the
personal pets, farm animals, and/or companion animals belonging to said
individuals and/or their family members;
2) Filing of criminal charges against Plaintiffs Tom and Judie Brown;
3) Pursuit of criminal prosecution of Plaintiffs Ellen Distler and Virginia Lee;
4) Euthanization [sic] of additional cats seized from Plaintiff Caroline’s Kids
5) Prevention of visitation with and/or inspection of the cats seized from
Plaintiff Caroline’s Kids Pet Rescue by any Plaintiff;
6) Taking any action that is in any way detrimental to the cats seized from
Plaintiff Caroline’s Kids Pet Rescue;
7) Allowing adoption of the feral cats seized from Plaintiff Caroline’s Kids
The Lake Humane Defendants, Defendants Pannella and Holland, and Defendant
Greco oppose Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining
Order, arguing in part that the Younger Doctrine requires the Court to abstain from
considering Plaintiffs’ claims or to dismiss them altogether.
II. LAW AND ANALYSIS
Injunctive relief is an extraordinary remedy and is issued cautiously and sparingly.
See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-313 (1982).
Four factors must be considered when deciding whether to grant injunctive relief: (1)
whether the movant has a strong likelihood of success on the merits; (2) whether there is a
threat of irreparable harm to the movant; (3) whether others will suffer substantial harm as a
result of the injunction, should it issue; and (4) whether the public interest will be served by
the injunction. See Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 134 F.3d
749, 753 (6th Cir. 1998); Vittitow v. Upper Arlington, 43 F.3d 1100, 1109 (6th Cir. 1995) (the
four factors are “not prerequisites to be met, but factors to be balanced.”); D.B. v. Lafon, 2007
U.S. App. LEXIS 3886 (6th Cir. 2007). While no single factor will be determinative as to the
appropriateness of the equitable relief sought, (In re DeLorean Motor Co., 755 F.2d 1223,
1229 (6th Cir. 1985)), “a finding that there is simply no likelihood of success on the merits is
usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
The moving party must establish their case by clear and convincing evidence. See
Deck v. City of Toledo, 29 F. Supp.2d 431, 433 (N.D. Ohio 1998), citing Garlock, Inc., v.
United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968).
The United State Supreme Court, in Younger v. Harris, 401 U.S. 37 (1971),
determined that federal courts should not interfere with ongoing state criminal proceedings
absent a showing of extraordinary circumstances. In the absence of “bad faith, harassment or
any other unusual circumstance,” federal courts should abstain whenever a plaintiff seeks to
obtain an injunction against a state court proceeding. Younger at 37. Three elements must be
present for the Younger Doctrine to apply: (1) an ongoing state judicial proceeding; (2) the
proceeding must implicate an important state interest; and (3) there must be an adequate
opportunity in the state proceeding to raise constitutional challenges. Sun Ref. & Mktg. Co. v.
Brennan, 921 F.2d 635, 639 (6th Cir. 1990). “So long as the constitutional claims of
[plaintiffs] can be determined in the state proceedings and so long as there is no showing of
bad faith, harassment, or some other extraordinary circumstances that would make abstention
inappropriate, the federal courts should abstain.” Middlesex County Ethics Comm’n v.
Garden State Bar Ass’n, 457 U.S. 423, 435 (1982).
Moreover, the Sixth Circuit has held the Younger Doctrine applies in cases where
plaintiffs seek monetary damages. See Carroll v. City of Mount Clemens, 139 F.3d 1072,
1075 (6th Cir. 1998) (holding, “[plaintiff’s] present federal action for damages under 42
U.S.C. §1983 and the Fair Housing Act is a textbook case for Younger abstention”); Schilling
v. White, 58 F.3d 1081, 1084 (6th Cir.1995) (“our Circuit has recognized that the relevant
inquiry when considering abstaining under Younger is the nature and degree of the state’s
interest in its judicial proceedings, rather than whether a party is seeking injunctive relief or
Plaintiffs’ likelihood of success on the merits
Plaintiffs assert that Lake Humane and other Ohio humane societies are endowed with
sovereign immunity by operation of an unconstitutional statutory scheme. Further, these
humane societies have the right to hire agents who are empowered to arrest, investigate and
seize property; and to hire their own attorneys as special prosecutors who are empowered to
charge anyone with criminal conduct. Plaintiffs complain that the humane societies use
tactics such as “extortion, coercion, and manufacturing of criminal charges in order to
intimidate owners and staffs of private animal shelters to go out of business and/or turn over a
substantial portion, if not all, of their funding.” (Plaintiffs’ Motion, ECF DKT #2 at 4). If
Defendants are not enjoined, they will retaliate against those, like Plaintiffs, who oppose
them, will pursue criminal prosecutions of animal neglect and cruelty, will euthanize more of
the cats seized from Caroline’s Kids and will subject Plaintiffs to public disrespect and
Plaintiffs must establish that there is a substantial likelihood that their claims will
succeed on the merits by clear and convincing evidence. Honeywell, Inc. v. Brewer-Garrett
Co., 145 F.3d 1331 (6th Cir. 1998); Garlock, 404 F.2d at 257. Plaintiffs must show more than
a “mere possibility of success.” Montgomery, et al. v. Carr, 848 F.Supp. 770, 775 (S.D.Ohio
1993). Because a preliminary injunction is “one of the most drastic tools in the arsenal of
judicial remedies,” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001), the proof required
is more stringent than that required to survive a summary judgment motion. Farnsworth v.
Nationstar Mortgage, LLC, 569 F.App’x 421, 425 (6th Cir. 2014).
Plaintiffs have not satisfied their strict burden. Their affidavits aver that the seizure of
the cats from Caroline’s Kids was not justified – that many of them suffered, not from lifethreatening ailments, but from common gum disease. They aver that they fear repeated
warrantless invasions of their premises and homes and that they must “consent” to pay Lake
Humane Society for care of the cats that never should have been seized. Basically, Plaintiffs
are disputing whether Lake Humane had probable cause to search the premises and remove
animals. It is worth noting that the prosecution of criminal cases involving companion
animals requires a probable cause hearing after seizure pursuant to Ohio Revised Code
§ 959.132(E)(1). Plaintiffs Tom and Judie Brown, with advice of counsel, waived their right
to a probable cause hearing.
The Court finds that, at best, Plaintiffs’ affidavits create issues of fact. That degree of
proof might be sufficient to defeat summary judgment, but does not meet the necessary clear
and convincing evidence standard for an injunction to issue.
Plaintiffs also seek to enjoin Defendants’ filing of criminal charges against Plaintiffs
Tom and Judie Brown, as well as the pursuit of criminal prosecution of Plaintiffs Ellen Distler
and Virginia Lee. (As was previously mentioned, criminal charges were instituted against the
Browns on February 14, 2017 and are pending today).
The Anti-Injunction Act, 28 U.S.C. § 2283, prohibits federal courts from ordering a
halt to state court proceedings, except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments. Chick Kam Choo
v. Exxon Corp., 486 U.S. 140, 146 (1988). None of those exceptions exists here.
Thus, the Court determines that Plaintiffs have no likelihood of prevailing on the
merits of their claims.
Likewise, the Court finds that Plaintiffs will not suffer irreparable harm in the absence
of a restraining order or a preliminary injunction. Plaintiffs acknowledge the appropriateness
of money damages since Plaintiffs’ Complaint prays for damages of five million dollars to
compensate them for the Defendants’ illegal acts violating Plaintiffs’ rights to the Freedom of
Association as guaranteed by the First Amendment, rights to Due Process and Equal
Protection as guaranteed by the Fourteenth Amendment, and the right to be free from
unreasonable Search and Seizure as guaranteed by the Fourth Amendment. Moreover, injury
to, or loss of, a pet or companion animal is susceptible to being compensated via money
damages. Reed v. Vickery, No. 2:09-cv-91, 2009 WL 3276648 (S.D.Ohio Oct.9, 2009).
Serving public interest
The Court finds that the State of Ohio has a legitimate interest in safeguarding animals
from inhumane treatment and in enforcing the State’s animal cruelty laws. Humane societies
are charged with the responsibility of promoting the care of animals and preventing their
mistreatment. The Court’s enjoining enforcement of animal cruelty statutes by Lake Humane
or preventing the pursuit of animal cruelty prosecutions by the special prosecutor, Defendant
Pannella, would be in direct contravention of the public interest.
Under the first prong of Younger, a court must consider whether proceedings in state
court are pending. The filings in the within matter demonstrate that proceedings are on-going
against Tom and Judie Brown in Painesville Municipal Court. The Court’s own research
reveals that Tom Brown had a jury trial and was found guilty on twenty-four counts. He is
awaiting sentencing. In Huffman v. Pursue Ltd., 420 U.S. 592, 608-609 (1975), the United
States Supreme Court held that Younger principles apply until a federal plaintiff exhausts his
state appellate remedies. In Huffman, the Supreme Court explained its rationale for applying
Younger throughout the appellate process:
Virtually all of the evils at which Younger is directed would inhere in federal
intervention prior to completion of state appellate proceedings, just as surely as
they would if such intervention occurred at or before trial. Intervention at the
later stage is if anything more highly duplicative, since an entire trial has
already taken place, and it is also a direct aspersion on the capabilities and
good faith of state appellate courts. Id. at 608.
The Supreme Court continued: “We therefore hold that Younger standards must be
met to justify federal intervention in a state judicial proceeding as to which a losing litigant
has not exhausted his state appellate remedies.” Id.
The initial prong of Younger is met since Plaintiff Brown is awaiting sentencing and
will still have his appellate rights available to him.
Under the second prong of Younger, the proceedings “must implicate an important
state interest.” In Miskowski v. Peppler, 36 F.App’x. 556, 557 (6th Cir. 2002), the Sixth
Circuit held that punishing conduct proscribed by statute satisfies the important state interest
prong under Younger. Plaintiffs Tom and Judie Brown were charged with Companion
Animal Cruelty, in violation of Ohio Revised Code § 959.131, a Misdemeanor of the Second
Degree. The second prong of Younger is satisfied.
Finally, under the third prong of Younger, there must be an adequate opportunity in
the state proceeding to raise constitutional challenges. Federal courts “must presume that the
state courts are able to protect the interests of a federal plaintiff.” Kelm v. Hyatt, 44 F.3d 415,
420 (6th Cir. 1995). In the case at bar, Plaintiffs had an opportunity assert their constitutional
defenses in the criminal proceedings and Plaintiffs do not contend the state courts are
inadequate. In fact, Plaintiffs concede that “there is a great likelihood that said Constitutional
issues might well be raised in that prosecution in Painesville Municipal Court.” (ECF DKT
#2 at 7).
The Court may be precluded from abstaining under Younger if there is a showing of
bad faith, harassment or extraordinary circumstances. Plaintiffs allege that the state
prosecutions were brought in bad faith and to harass Plaintiffs into paying illegal
“restitution.” (ECF DKT #30 at 4). However, the Court notes that the statutory scheme at
issue here mandates a probable cause hearing upon the seizure of allegedly mistreated or
endangered animals. The Court also notes that Plaintiffs waived that hearing at which they
would have had the opportunity to challenge the charges. Also, restitution is authorized by
statute upon conviction of animal cruelty; and Plaintiffs have the option of going forward
with a trial rather than executing a non-prosecution agreement.
Plaintiffs have not demonstrated any circumstance preventing this Court’s exercise of
In view of the foregoing analysis, Plaintiffs have not established, to the requisite
degree of proof, their entitlement to injunctive relief. Furthermore, this Court is bound by the
application of the Younger Doctrine to abstain from hearing Plaintiffs’ Verified Complaint
regarding a pending state court proceeding which implicates a significant state interest, and
which provides Plaintiffs an adequate opportunity to assert their constitutional challenges.
Therefore, Plaintiffs’ Motion (ECF DKT #2) for Preliminary Injunction and
Temporary Restraining Order is denied. The Motion (ECF DKT #25) of Defendant Jeff
Greco to Stay is granted and the above-captioned case is removed from the active docket.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 11, 2017
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