Propp-Estimo v. Lewis County et al

Filing 14

ORDER denying 6 Motion for TRO signed by Judge Benjamin H. Settle.(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 JANN PROPP-ESTIMO, Plaintiff, 9 10 v. CASE NO. C17-5559 BHS ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER LEWIS COUNTY, et al., 11 Defendants. 12 13 This matter comes before the Court on Plaintiff Jann Propp-Estimo’s (“Propp- 14 Estimo”) motion for temporary restraining order (Dkt. 6). The Court has considered the 15 pleadings filed in support of and in opposition to the motion and the remainder of the file 16 and hereby denies the motion for the reasons stated herein. 17 I. PROCEDURAL AND FACTUAL BACKGROUND 18 On July 13, 2017, Propp-Estimo filed a complaint against Defendants Lewis 19 County, Lewis County Animal Shelter, Lewis County Sheriff’s Office, Gabriel Frase, and 20 Amy Hanson (“Defendants”). Dkt. 1-1. Propp-Estimo asserts seven causes of action 21 stemming from the seizure and judicially ordered euthanasia of her dog Hank. Id. 22 Unbeknownst to Propp-Estimo, Hank was previously named Tank and had been declared ORDER - 1 1 a dangerous animal while in the possession of his previous owner. Although Propp- 2 Estimo adopted Hank “as-is” from the animal shelter, no one informed Propp-Estimo of 3 Hank’s history. On May 9, 2017, Detective Frase contacted Propp-Estimo regarding 4 Hank. Dkt. 7, Declaration of PES, ¶ 24. Detective Frase eventually seized Hank at 5 Propp-Estimo’s son’s home later that afternoon. Id. ¶ 28. 6 On June 19, 2017, Lewis County adopted § 6.05.155 entitled “Judicial removal of 7 dangerous animal designation.” The provision applies “retrospectively to all animals 8 which have been designated as dangerous animals and which are in the possession of 9 Lewis County’s animal shelter on the date of its enactment.” Lewis County Code, § 10 6.05.155(8). The provision also grants the judicial officer the power to declare an animal 11 a “dangerous animal” and order “that it be humanely destroyed.” Id. 12 The same day the county adopted the ordinance, Lewis County District Judge 13 R.W. Buzzard held a hearing regarding Hank. Judge Buzzard declared Hank a dangerous 14 animal and ordered that he be humanely destroyed within 48 hours. Dkt. 8 at 90–91. 15 Propp-Estimo immediately appealed the ruling to the Lewis County Superior Court, and 16 Superior Court Judge James Lawler stayed the euthanasia until August 31, 2017. Dkt. 6 17 at 7. A hearing on the appeal is set for August 24, 2017. Id. at 8. 18 On July 20, 2017, Defendants removed the complaint to this Court. Dkt. 1. On 19 August 1, 2017, Propp-Estimo filed the motion for a temporary restraining order. Dkt. 6. 20 On August 2, 2017, Defendants responded. Dkt. 10. 21 22 ORDER - 2 1 2 II. DISCUSSION A plaintiff seeking preliminary relief must establish that she is likely to succeed on 3 the merits, that she is likely to suffer irreparable harm in the absence of preliminary 4 relief, that the balance of equities tips in her favor, and that an injunction is in the public 5 interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). 6 In this case, Propp-Estimo has failed to show that she is likely to succeed on the 7 merits or that an injunction is in the public interest. First, Propp-Estimo argues that she is 8 likely to succeed on merits of her claims for specific performance, equitable estoppel, and 9 violation of her Fourth Amendment rights. Specific performance is a possible remedy for 10 breach of contract and not a separate cause of action. To the extent Propp-Estimo alleges 11 a breach of contract, she has failed to show a likelihood of success on the merits of this 12 claim when she adopted Hank “as-is.” Similarly, the principles of equitable estoppel do 13 not clearly fit the facts of this case. While it seems inexplicable to adopt out a dangerous 14 animal only to seize the animal three months later and order it to be humanely destroyed, 15 Propp-Estimo fails to show that she is likely to succeed on a claim that the animal 16 shelter’s alleged misrepresentations by omissions vitiate the fact that Hank has been 17 declared a dangerous animal. Regarding the Fourth Amendment violation, Propp-Estimo 18 has failed to show a likelihood of success on the merits when she, or her son, voluntarily 19 delivered Hank to the officers. Therefore, the Court concludes that PES has failed to 20 show a likelihood of success on the merits of any claim in her motion. 21 22 Second, Propp-Estimo has failed to show that her requested injunction is in the public interest. Propp-Estimo requests an order “compelling the County to immediately ORDER - 3 1 release Hank to her custody at no charge and with no restrictions except those attendant 2 upon any nondangerous dog subject to the general laws.” Dkt. 6 at 22. Two independent 3 government officials have declared Hank a dangerous animal. Even though Propp- 4 Estimo provides facts in support of her contention that he is not a dangerous animal, the 5 public has an interest in treating Hank as a dangerous animal until those findings are 6 properly overturned. The Court notes that Defendants concede they are willing to release 7 Hank to Propp-Estimo if she “agreed to maintain him under the dangerous dog 8 restrictions required by law.” Dkt. 10 at 3. Regardless, the Court concludes that Propp- 9 Estimo has failed to show that an immediate injunction is in the public interest. 10 11 12 13 III. ORDER Therefore, it is hereby ORDERED that Propp-Estimo’s motion for temporary restraining order (Dkt. 6) is DENIED. Dated this 7th day of August, 2017. A 14 15 BENJAMIN H. SETTLE United States District Judge 16 17 18 19 20 21 22 ORDER - 4

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