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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JANN PROPP-ESTIMO,
Plaintiff,

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v.

CASE NO. C17-5559 BHS
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER

LEWIS COUNTY, et al.,

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Defendants.

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This matter comes before the Court on Plaintiff Jann Propp-Estimo’s (“Propp-

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Estimo”) motion for temporary restraining order (Dkt. 6). The Court has considered the

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pleadings filed in support of and in opposition to the motion and the remainder of the file

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and hereby denies the motion for the reasons stated herein.

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I.

PROCEDURAL AND FACTUAL BACKGROUND

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On July 13, 2017, Propp-Estimo filed a complaint against Defendants Lewis

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County, Lewis County Animal Shelter, Lewis County Sheriff’s Office, Gabriel Frase, and

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Amy Hanson (“Defendants”). Dkt. 1-1. Propp-Estimo asserts seven causes of action

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stemming from the seizure and judicially ordered euthanasia of her dog Hank. Id.

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Unbeknownst to Propp-Estimo, Hank was previously named Tank and had been declared

ORDER - 1

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a dangerous animal while in the possession of his previous owner. Although Propp-

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Estimo adopted Hank “as-is” from the animal shelter, no one informed Propp-Estimo of

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Hank’s history. On May 9, 2017, Detective Frase contacted Propp-Estimo regarding

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Hank. Dkt. 7, Declaration of PES, ¶ 24. Detective Frase eventually seized Hank at

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Propp-Estimo’s son’s home later that afternoon. Id. ¶ 28.

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On June 19, 2017, Lewis County adopted § 6.05.155 entitled “Judicial removal of

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dangerous animal designation.” The provision applies “retrospectively to all animals

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which have been designated as dangerous animals and which are in the possession of

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Lewis County’s animal shelter on the date of its enactment.” Lewis County Code, §

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6.05.155(8). The provision also grants the judicial officer the power to declare an animal

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a “dangerous animal” and order “that it be humanely destroyed.” Id.

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The same day the county adopted the ordinance, Lewis County District Judge

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R.W. Buzzard held a hearing regarding Hank. Judge Buzzard declared Hank a dangerous

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animal and ordered that he be humanely destroyed within 48 hours. Dkt. 8 at 90–91.

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Propp-Estimo immediately appealed the ruling to the Lewis County Superior Court, and

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Superior Court Judge James Lawler stayed the euthanasia until August 31, 2017. Dkt. 6

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at 7. A hearing on the appeal is set for August 24, 2017. Id. at 8.

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On July 20, 2017, Defendants removed the complaint to this Court. Dkt. 1. On

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August 1, 2017, Propp-Estimo filed the motion for a temporary restraining order. Dkt. 6.

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On August 2, 2017, Defendants responded. Dkt. 10.

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ORDER - 2

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II.

DISCUSSION

A plaintiff seeking preliminary relief must establish that she is likely to succeed on

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the merits, that she is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in her favor, and that an injunction is in the public

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interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).

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In this case, Propp-Estimo has failed to show that she is likely to succeed on the

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merits or that an injunction is in the public interest. First, Propp-Estimo argues that she is

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likely to succeed on merits of her claims for specific performance, equitable estoppel, and

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violation of her Fourth Amendment rights. Specific performance is a possible remedy for

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breach of contract and not a separate cause of action. To the extent Propp-Estimo alleges

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a breach of contract, she has failed to show a likelihood of success on the merits of this

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claim when she adopted Hank “as-is.” Similarly, the principles of equitable estoppel do

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not clearly fit the facts of this case. While it seems inexplicable to adopt out a dangerous

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animal only to seize the animal three months later and order it to be humanely destroyed,

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Propp-Estimo fails to show that she is likely to succeed on a claim that the animal

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shelter’s alleged misrepresentations by omissions vitiate the fact that Hank has been

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declared a dangerous animal. Regarding the Fourth Amendment violation, Propp-Estimo

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has failed to show a likelihood of success on the merits when she, or her son, voluntarily

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delivered Hank to the officers. Therefore, the Court concludes that PES has failed to

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show a likelihood of success on the merits of any claim in her motion.

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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

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release Hank to her custody at no charge and with no restrictions except those attendant

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upon any nondangerous dog subject to the general laws.” Dkt. 6 at 22. Two independent

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government officials have declared Hank a dangerous animal. Even though Propp-

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Estimo provides facts in support of her contention that he is not a dangerous animal, the

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public has an interest in treating Hank as a dangerous animal until those findings are

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properly overturned. The Court notes that Defendants concede they are willing to release

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Hank to Propp-Estimo if she “agreed to maintain him under the dangerous dog

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restrictions required by law.” Dkt. 10 at 3. Regardless, the Court concludes that Propp-

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Estimo has failed to show that an immediate injunction is in the public interest.

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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

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4