Opinion
Civil No. 03-500-CO.
August 4, 2004
FINDINGS AND RECOMMENDATION
This is a civil rights action brought by plaintiffs against defendants Kevin Barry, the City of Klamath Falls, Michael Horton, Klamath County, Tracey Wheeland, and Shawn Ferns. Plaintiffs allege that: 1) defendants Barry and Horton violated their Fourth Amendment rights by subjecting them to unreasonable searches and seizures of their property; 2) defendants Barry, Horton, Wheeland, and Ferns violated their Fourth Amendment rights by subjecting them to an unreasonable seizure of their person; defendant City of Klamath Falls is liable for false arrest and malicious prosecution; and 4) defendant Klamath County is liable for false arrest, intentional infliction of emotional distress, and malicious prosecution. (Complaint at 6). Before the court are plaintiffs' motion for partial summary judgment (#30) and defendants' motion for summary judgment. (#35).
I. FACTS
Plaintiffs submit the following facts in support of their motion for partial summary judgment:
Defendants submitted a response to plaintiffs' concise statement of material facts. However, defendants response does not contain any citations to particular evidence supporting their acceptance or denial of any of the facts set forth by plaintiffs as required by Local Rule 56.1©). Therefore, the court has set forth the plaintiffs' concise statement of material facts in their entirety. To the extent that plaintiffs' responded to defendants' concise statement of facts without citation to specific evidence supporting their denial of those facts, those facts will also be set forth in their entirety. The court also added facts that were included in plaintiffs' response to defendants' concise statement.
Plaintiffs Dean and Becky Warmington are husband and wife. On December 7, 2001, plaintiffs were tenants in possession of the residential rental property at 1536 Johnson Avenue in Klamath Falls, Oregon. Between December 5, 2001 and December 9, 2001, they were in the process of moving from this rental home to another home. On December 7, 2001, plaintiffs had several boxes of personal property and other personal possessions, including their two Blue Heeler dogs, animal carrier, dishes, dog food, and leashes, on the premises of 1536 Johnson, that they had not yet moved to their new residence. (Decl. of Dean Warmington ¶ 3).
The house at 1536 Johnson is two stories in height on the side facing the street and one story on the back side. The house sits back and significantly uphill from the street and sidewalk. During the course of plaintiffs' move, plaintiffs kept the window shades pulled and the blinds closed. As a consequence of slope of the lot, the construction of the house and the blinds, none of the main living areas of the home was visible from the windows accessible to a person standing outside the house or walking around its perimeter. (Decl. of Dean Warmington ¶ 4).
On December 7, 2001, plaintiffs' dogs were approximately 13 weeks of age, and of healthy appearance and normal size and weight. Plaintiffs kept the dogs in the back yard of 1536 Johnson, which was surrounded by a 6 foot high wooden fence and a 6 foot wooden gate that latched. Plaintiffs kept the gate closed and latched at all times. The back yard was not visible to the public. (Decl. of Dean Warmington ¶ 2).
On December 7, 2001, at approximately 8:50 p.m., defendant Barry was dispatched to 1528 Johnson on a neighbor's report of abandoned dogs. (Park Decl. Ex. A at 2-3 — Barry Depo. at 11-12; Park Decl. Ex. A at 18-21 — Police Report Ex. 1 to Barry Depo.). When he arrived, he spoke with the neighbor who had lodged the complaint, knocked on the door to 1536 Johnson, and, when he received no answer, attempted to look into the windows of the house. His impression was that the house was vacant, but his view into the house was restricted. (Park Decl. Ex. A at 7-8, 11-12 — Barry Depo. at 35-36, 42-43). The only window through which he could see into the house was in the southeast corner. Park Decl. Ex. A at 11-12 — Barry Depo. at 42-43). This was a basement window. (Park Decl. Ex. A at 22 — Barry Depo. Ex. 2; Park Decl. Ex. A at 6 — Barry Depo. at 29). Once Officer Barry entered the back yard, he did not further attempt to see inside the house. (Park Decl. Ex. A at 8 — Barry Depo. at 36).
Officer Barry followed the neighbor to the back yard gate on the north east side of the house. (Park Decl. Ex. A at 8-9 — Barry Depo. 36-37). He looked over the gate into the back yard, saw the dogs and they appeared to be physically okay. (Id.). The neighbor informed him that the dogs had been given food and water earlier that day. (Park Decl. Ex. A at 20 — Police Report). He then entered the back yard, looked around, took photos of the area, placed the dogs into an animal carrier that was in the back yard and delivered them to Klamath County Animal Control Officer Bruce Angrimson. (Id.; Park Decl. Ex. B at 7 — Angrimson Depo. at 15). At the time of his entry and seizure of the animals, Officer Barry did not know the identity of the property owner. (Park Decl. Ex. A at 23-24 — Barry Depo. at 23-24). Prior to placing the dogs in the carrier, they ran around some and Officer Barry noticed nothing unusual about them. (Park Decl. Ex. A at 13 — Barry Depo. at 58). He doesn't recall them being wet or noticing any unusual smell. (Id.). He did not express any concern about their condition to Bruce Angrimson. (Park Decl. Ex. B at 9 — Angrimson Depo. at 19).
Officer Barry did not obtain a warrant, nor did he consider obtaining a warrant prior to entering the back yard and seizing the dogs. (Park Decl. Ex. A at 14 — Barry Depo. at 59). Officer Barry had limited experience in obtaining warrants, had not received training from Klamath Falls Police Department in search warrant procedures, and was not familiar with the process for obtaining a telephonic warrant. (Park Decl. Ex. A at 14-16 — Barry Depo. at 59-61). It would have taken approximately two hours for Officer Barry to obtain a warrant. (Park Decl. Ex. D).
On the morning of December 10, 2001, plaintiffs contacted the Humane Society and were informed that they could pick up their dogs. (Park Decl. Ex. B at 12-13 — Angrimson Depo. at 28-29; Park Decl. Ex. B at 15 — Angrimson Depo. Ex. 1). That same morning Becky Warmington went to the Klamath County Humane Society, and the smaller of the two dogs was returned to her. (Warmington Decl. ¶ 15; Park Decl. Ex. — Horton Depo. Ex. 3 — Officer's Report). As the larger dog was being brought up from the kennel by a Humane Society employee to be returned, a laceration was discovered on the underside of that dog's neck. (Id.).
Animal Control Officer Horton was present at the front counter of the Humane Society at the time, and asked Mrs. Warmington if she had a veterinarian that could see the dog. (Park Decl. Ex. C at 3-5 — Horton Depo. at 50-52). Mrs. Warmington replied that she did not, and she gave Deputy Horton permission to take the dog to the Companion Pet Clinic for treatment. (Id.). Had Mrs. Warmington wanted to take possession of the dog and take it to the veterinarian herself, the dog would have been released to her. (Park Decl. Ex. C at 5 — Horton Depo. at 52). Officer Horton had not determined to charge plaintiff with any offense at this time. (Park Decl. Ex. C at 6-7, 12 — Horton Depo. at 54-55, 70).
Later in the day, on December 10, 2001, Dean Warmington called the Companion Pet Clinic to see about picking up his dog and spoke with Dr. Wilson. (Warmington Decl. ¶ 5). Dr. Wilson told Mr. Warmington that he would have to check with Animal Control before he released the dog. (Id.). Shortly thereafter, Mr. Warmington received a call from Michael Horton informing him that his dog would not be released, and that he was not to make further contact with Dr. Wilson until he had been contacted by the District Attorney's office. (Id.; Park Decl. Ex. C at 8-11 — Horton Depo. at 57-60). Neither Deputy Horton, nor any other law enforcement official, obtained a warrant authorizing the seizure of the plaintiffs' dog. (Park Decl. ¶ 5).
Defendants submit the following facts in support of their motion for summary judgment:
On August 1, 2001, plaintiffs entered into a month-to-month tenancy with Jeff Lord, the owner of a residence at 1536 Johnson Avenue in Klamath Falls, Oregon. (Montgomery Aff. Ex. 101 — Lord Aff.). Two months after the tenancy began, Mr. Lord did not receive any rent from the plaintiffs when it was due on October 1, 2001. Further, Mr. Lord did not receive any tender of rent from plaintiffs for the month of October until October 31, 2001, when Mr. Lord received a check from the plaintiffs. Mr. Lord deposited that check, but the check was returned by the bank due to insufficient funds. (Defendants' Exhibit 101).
Plaintiffs object to defendants' paragraphs 2-4 arguing that they are not relevant to any claims. The court finds that these facts are relevant. Plaintiffs object to defendants paragraphs 5, 14, 15, and 17 arguing that they are not relevant to any of the claims. The court finds that these facts are relevant to plaintiffs' claims and defendants' defenses. Therefore, these facts are included.
The plaintiffs also failed to pay their rent due for November, 2001. As a result, Mr. Lord mailed a notice of termination to the plaintiffs on November 5, 2001. Mr. Lord then attempted to contact the plaintiffs by telephone, but he could not because the telephone had been disconnected. Mr. Lord also went to the residence at 1536 Johnson Avenue on several occasions to attempt to contact plaintiffs, but he was not able to contact anyone at the residence. (Defendants' Exhibit 101). On November 20, 2001, plaintiffs were given a notice that they would be evicted from their residence at 1536 Johnson Avenue for failure to pay rent. (Defendants' Exhibit 101). In a letter dated November 20, 2001, Mr. Lord stated that plaintiffs' rent was paid until Friday November 30, 2001. (Supp. Warmington Decl. Exhibit A).
Sometime prior to December 7, 2001, the plaintiffs began moving their possessions from their home. As of Friday, December 7, 2001, the plaintiffs "had already taken most everything" out of the home. The plaintiffs had also disconnected their phone and cable service on or before December 7. (Montgomery Aff. Ex. 112 at 4, 23 — B. Warmington Depo. at 23, 120).
On December 7, 2001, Klamath Falls Police Officer Kevin Barry was dispatched to a report of two abandoned dogs at 1536 Johnson Avenue. At approximately 8:51 p.m., Officer Barry arrived at 1528 Johnson Avenue in Klamath Falls, Oregon, where Dennis and Cindy Botelho reside. Upon arriving at the address, Mr. Botelho informed Officer Barry that the residents at 1536 Johnson Avenue had moved out on Wednesday, December 5, 2001, and that they had left two dogs in their backyard. Mr. Botelho stated that he had not seen the residents of 1536 Johnson Avenue return since the afternoon of December 5, 2001. Mr. Botelho also informed Officer Barry that the puppies had not been fed or given water for three days, and that he had provided food to the pups that evening, which they ate rapidly as if they were very hungry. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry; Montgomery Aff. Ex. 114 at 3-4 — Testimony of Kevin Barry and Mike Horton at 3-4; Montgomery Aff. Ex. 103 — Botelho Aff.). On and before December 7, 2001, the entire backyard of the plaintiffs' residence was plainly visible from the neighboring backyard of the Botelho residence. (Montgomery Aff. Ex. 103 — Botelho Aff.).
After speaking to Mr. Botelho, Officer Barry proceeded to the 1536 Johnson Avenue property. Officer Barry saw no vehicles in the driveway. He also saw a storage shed, which had its doors open and was empty. Officer Barry peered into the windows of the house, and noted that the house appeared to be vacant. Officer Barry did not see any furniture or other evidence that anyone still lived at the residence. Based upon these observations, Officer Barry believed that the property was vacant, and that any prior residents had moved out. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry).
After concluding that the property was vacant, Officer Barry went into the backyard of the property with Dennis Botelho. There, Officer Barry saw two blue heeler puppies. The puppies were chained near two separate doghouses. Officer Barry did not see any food or water in the backyard, but did observe an empty coffee can near one of the doghouses, and an empty dog dish near the other. One of the doghouses was in disrepair, and looked like it was about to fall apart. Neither doghouse had any type of bedding in it. Dog feces littered the snow-covered ground. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry; Montgomery Aff. Ex. 114 at 6 — Transcript Testimony of Kevin Barry and Mike Horton at 6).
Officer Barry asked Mr. Botelho what the names of the residents at 1536 Johnson Avenue were. Mr. Botelho did not know their names. Mr. Botelho, on his own initiative, then went to the mailbox for the address, and retrieved mail. Mr. Botelho showed the mail to Officer Barry, and pointed out that the mail was addressed to Dean and Becky Warmington. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry; Montgomery Aff. Ex. 110 at 5-6 — Barry Depo. at 39-40).
On December 7, 2001, at 9:53 p.m., approximately the time that Officer Barry arrived at the 1536 Johnson Avenue property, the temperature was approximately 30 degrees Fahrenheit. The approximate minimum temperature on December 7, 2001, was 19 degrees Fahrenheit. There was approximately 4 inches of snow on the ground, which had present since at least Thanksgiving. (Montgomery Aff. Ex. 112 at 24-25 — B. Warmington Depo. at 126, 134; Montgomery Aff. Ex. 102 — Affidavit of Kevin Barry). Officer Barry decided to take the two pups to County Dog Control, because he believed, based on the circumstances described above, that the puppies were in danger. (Montgomery Aff. Ex. 114 at 8 — Transcript Testimony of Kevin Barry and Mike Horton). Plaintiffs admit that Officer Barry had probable cause to believe the dogs were abandoned.
Officer Barry placed the two dogs in dog carriers, and transported them to Stewart Lennox, where Klamath County Animal Control Officer Bruce Angrimson took custody of the dogs from Officer Barry. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry). Officer Barry forwarded a police report in December, 2001, to the District Attorney, which listed the charge of Animal Neglect II. Officer Barry filed his police report solely for the purpose of doing his job as a police officer. Officer Barry did not act with any improper purpose. (Montgomery Aff. Ex. 102A — Crime Report of Kevin Barry; Montgomery Aff. Ex. 112 at 30 — B. Warmington Depo. at 162; Montgomery Aff. Ex. 113 at 4 — D. Warmington Depo. at 73).
When Mrs. Warmington returned to the property and learned that the dogs were not at the property, Mrs. Warmington left the property and made no efforts to locate the dogs until the next day. Mrs. Warmington assumed someone had stolen the dogs. Mrs. Warmington testified that she did not send the girls to talk with the neighbors to see if they knew what happened to the animals because she and her family "were in a hurry and we figured we would take care of whatever it was that afternoon." (Montgomery Aff. Ex. 112 at 5-7 — B. Warmington Depo. at 31-33).
On Monday, December 10, 2001, three days after the dogs were taken by Officer Barry, Becky Warmington called the Klamath Humane Society (KHS), and was informed that she could get the dogs at the KHS. Mrs. Warmington proceeded to the KHS. (Montgomery Aff. Ex. 112 at 8-9 — B. Warmington Depo. at 34-35).
At the KHS, Mrs. Warmington had one of the dogs returned to her. As the second dog was being brought out to Mrs. Warmington, Jack South, an employee of the Humane Society, noticed that there was a severe laceration on the neck of the dog. Mr. South showed this to Klamath County Animal Control Officer Horton, who was present. Officer Horton examined the dog, and saw that a small nylon collar was imbedded in the flesh of the dog's neck. Officer Horton could smell an odor coming from the dog that smelled like rotting flesh. Officer Horton and Mr. South removed the collar. Officer Horton told Mrs. Warmington that the dog needed to be seen by a veterinarian, and Mrs. Warmington agreed. Officer Horton asked Mrs. Warmington if he could take the dog to Dr. Dean Wilson, a veterinarian, and Mrs. Warmington gave Officer Horton permission to do so. Officer Horton asked Mrs. Warmington if she wanted to follow him to the veterinarian, and Mrs. Warmington declined, stating that she would check on the dog later. Mrs. Warmington did not check on the dog later. (Montgomery Aff. Ex. 104 — Horton Aff.; Montgomery Aff. Ex. 111 at 8-11 — Horton Depo. at 44-45, 50; Montgomery Aff. Ex. 112 at 11 — B. Warmington Depo. at 50). Mr. Warmington called the vet later that day. (Warmington Decl. ¶ 5).
The collar that was removed by Officer Horton was the original collar that had been on the dog when the plaintiffs first purchased the dog in Utah. Mrs. Warmington had instructed her daughters to replace this original collar with a silver choke chain. Rather than replace the original collar, the daughters left the original collar on the pup, beneath the silver choke chain. After this, the original collar was never adjusted or removed. (Montgomery Aff. Ex. 112 at 10 — B. Warmington Depo. at 41; Montgomery Aff. Ex. 113 at 3 — D. Warmington Aff. at 65).
After talking to Mrs. Warmington at the Humane Society, Officer Horton proceeded to the Companion Pet Clinic, where he met with Dr. Dean Wilson. At the Companion Pet Clinic, Officer Horton took several photographs of the dog, which showed the injury to the dog's neck. (Montgomery Aff. Ex. 104 — Horton Aff.; Montgomery Aff. Ex. 111 at 5-6 — Horton Depo. at 32-33).
At the Companion Pet Clinic, Dr. Dean Wilson examined the pup. Dr. Wilson observed that the pup was between 12 and 14 weeks old. The pup had a neck lesion which was caused by a collar that had not been adjusted or replaced as the pup grew. The collar had caused tissue death around the puppy's neck. Dr. Wilson concluded that the lesion was not a fresh cut that had been recently caused. This was evident from the fact that the margins of the skin showed new tissue growth that was granulating as if to enclose a collar. The lesion was also chronically infected, and significant skin death had occurred. The lesion involved a pressure necrosis that had to have taken at least a week, if not more, to develop. This injury was consistent only with the failure to adjust or replace a puppy's collar as it grew. In his thirteen years as a veterinarian, Dr. Wilson had seen similar injuries. The prior cases had always involved dog owners neglecting to adjust or replace a collar as the puppy grew. Dr. Wilson performed surgery on the dog, and the dog eventually recovered. (Montgomery Aff. Ex. 105 — Wilson Aff.).
Later on December 10, Dr. Wilson called Officer Horton and informed him that Dean Warmington had called him and asked for the return of the dog. Dr. Wilson then asked Officer Horton, whether the dog could be released. Officer Horton called Klamath County Deputy District Attorney Matt Parks, and asked Parks what should be done with the pup. Deputy District Attorney Parks told Officer Horton to not have the dog released to Mr. Warmington at this point. (Montgomery Aff. Ex. 111 at 12-14 — Horton Depo. at 57-59). Mr. Parks does not recall telling Officer Horton not to release the dog. (Supp. Park Decl. Ex. E at 4 — Parks Depo. at 8).
After the pup was taken to the Companion Pet Clinic, Becky Warmington never made any further attempts to retrieve the pup, and never contacted the authorities to retrieve the pup. (Montgomery Aff. Ex. 112 at 11 — B. Warmington Depo. at 50). Mr. Warmington received a call from Officer Horton, who directed him not to attempt to pick-up the dog from the vet, but to wait for the Klamath County District Attorney's Office to contact him. (Warmington Decl. ¶ 5).
In December, 2001, Officer Horton forwarded a report to the Klamath County District Attorney relating to his encounter with the Warmingtons which listed the charges of Animal Abuse I, Tampering with Physical Evidence, and Animal Neglect I. Officer Horton had no improper intent, purpose, or malice toward the plaintiffs in filing the report, and was only doing his job as an animal control officer. (Montgomery Aff. Ex. 104 — Horton Aff.).
On February 14, 2002, Klamath County Deputy District Attorney Michael Romano filed an information charging Dean and Becky Warmington with Animal Neglect in the Second Degree, Animal Abandonment, and Animal Abuse in the First Degree. In filing this information, Mr. Romano investigated the case, and exercised his own independent judgment. Officer Barry, Officer Horton, Deputy Ferns, and Deputy Weiland were not involved in the decision to file the information. (Montgomery Aff. Ex. 106 — Romano Aff; Montgomery Aff. Ex. 104 — Horton Aff.; Montgomery Aff. Ex. 107 — Ferns Aff.; Montgomery Aff. Ex. 108 — Weiland Aff; Montgomery Aff. Ex. 109 — Court Records from Criminal Case).
Mr. Warmington spoke with Officer Barry and told him that there were two witness who saw the plaintiffs' children feed and water the dogs or who helped to feed and water the dogs. This information was not in Officer Barry's report. (Supp. Warmington Decl. ¶ 3).
On February 21, 2002, the Klamath County Circuit Court ordered two bench warrants for the arrests of Dean and Becky Warmington. The warrants required the arrest of both plaintiffs for charges of Animal Neglect II, Animal Abandonment, and Animal Abuse I. None of the defendants participated in the applications for these warrants. (Montgomery Aff. Ex. 104 — Horton Aff.; Montgomery Aff. Ex. 107 — Ferns Aff.; Montgomery Aff. Ex. 108 — Weiland Aff).
On March 5, 2002, Klamath County Deputy Sheriff Sean Ferns was informed by a supervisor of the arrest warrants for Dean and Becky Warmington. After being instructed to make the arrests required by the warrants by his supervisor, Deputy Ferns proceeded with Deputy Tracy Weiland to the Warmingtons' residence at 4534 Anderson Avenue in Klamath Falls, Oregon in order to effectuate the arrests. (Montgomery Aff. Ex. 107 — Ferns Aff.; Montgomery Aff. Ex. 108 — Weiland Aff).
Deputies Ferns and Weiland approached the residence, and contacted the Warmingtons at the door to their residence. Mr. Warmington was taken into custody, and transferred to a patrol vehicle. ((Montgomery Aff. Ex. 107 — Ferns Aff.; Montgomery Aff. Ex. 108 — Weiland Aff).
The Warmingtons had three daughters, aged 6, 8, and 10, at the time of the arrest. Since no adults other than Dean and Becky Warmington were present, two options were available to the arresting officers. One was to have child protective services take the children away. The other, was to allow the Warmingtons to have someone they knew watch their children. Rather than require the children to be taken by child protective services, Deputy Ferns allowed Mrs. Warmington to make arrangements for someone to come and take care of the Warmingtons' daughters. Mrs. Warmington contacted the wife of her bishop, Cathy Baker, who then contacted the bishop. After Mrs. Warmington was taken to the patrol vehicle, Cathy Baker called and informed Deputy Ferns that the bishop would arrive in ten to fifteen minutes. Deputy Ferns then asked Mrs. Warmington if it was ok to leave the children until the bishop arrived, and Mrs. Warmington stated that that would be "fine." (Montgomery Aff. Ex. 107 — Ferns Aff).
When Mrs. Warmington called Mrs. Baker, Mrs. Baker told Mrs. Warmington that she would be right there; it took her about 20 minutes to drive from her house to the Warmingtons house. (Supp. Park Decl. Ex. F at 2 — Baker Depo. at 7).
Deputy Ferns took a number of steps to reduce the distress of the arrest on the Warmingtons. As stated by Mrs. Warmington, Deputy Ferns was "doing the best he could under the circumstances." First, Deputy Ferns made efforts to calm down the Warmingtons' daughters, and told them not to worry. Second, Deputy Ferns made sure that Mrs. Warmington obtained coats and Mr. Warmington's medication. Third, Deputy Ferns made sure that both of the Warmingtons were not handcuffed in sight of their daughters. Fourth, when the Warmingtons' daughters asked to see their father, Deputy Ferns allowed the children to see their father if it was "okay" with their mother. (Montgomery Aff. Ex. 112 at 13, 16, 20, 26 — B. Warmington Depo. at 54, 64, 71, 142; Montgomery Aff. Ex. 107 — Ferns Aff.).
Deputies Weiland and Ferns acted professionally, and were only doing their jobs. Neither deputy acted with any improper purpose in arresting the plaintiffs, or with any intent to cause the plaintiffs distress. (Montgomery Aff. Ex. 112 at 15, 29-31 — B. Warmington Depo. at 59, 161-163, Montgomery Aff. Ex. 107 — Ferns Aff.; Montgomery Aff. Ex. 108 — Weiland Aff.).
After ensuring that someone was coming shortly to watch the children, and after obtaining Mrs. Warmington's approval, the deputies transported the Warmingtons to the Klamath County Jail. Within minutes after the Warmingtons were transported, the Bakers arrived at the residence. (Montgomery Aff. Ex. 112 at 19, 21 — B. Warmington Depo. at 70, 78; Montgomery Aff. Ex. 107 — Ferns Aff.).
While Deputy Weiland was booking the Warmingtons, Deputy Ferns called the Warmingtons' residence to check on the children. Deputy Ferns was informed by the children that they were okay, and that the pastor was with them. Deputy Ferns then told Becky Warmington that the children were okay, and Mrs. Warmington thanked Deputy Ferns. (Montgomery Aff. Ex. 107 — Ferns Aff.). Dean and Becky Warmington were released from jail the next day, March 6, 2002. (Montgomery Aff. Ex. 112 at 22 — B. Warmington Depo. at 86).
Deputy District Attorney Michael Romano filed a First Amended Information on March 6, 2002, reducing the charges against the Warmingtons to Animal Abuse I. A Second Amended Information was filed on September 5, 2002, which changed the charges to Animal Neglect II. Plaintiffs were tried on the charges of Animal Neglect II. (Montgomery Aff. Ex. 109 — State Court Documents).
On July 31, 2002, Dean Warmington filed a motion to suppress all evidence as a result of the search of the plaintiffs' property. Dean Warmington's attorney, Mark Runnels, submitted a memorandum, which asserted that the entry and search of the Warmingtons' property was illegal. (Id.).
On August 1, 2003, counsel for Becky Warmington, Lisette Spencer, also filed a motion for an omnibus hearing to determine the legality of the search of the Warmingtons' property. Ms. Spencer also sought to exclude all evidence seized on the grounds that Officer Barry's "search" was illegal, and on the grounds that the plaintiffs' property was illegally seized. (Id.).
A hearing was held on the motions on August 28, 2002, which was continued on November 20, 2002. Prior to the hearing on November 20, 2002, and on October 11, 2002, Dean Warmington, through Mr. Runnels, filed a second motion to suppress, which sought also to suppress all evidence obtained "after the unlawful entry, seizure, and search." (Id.). On October 21, 2002, the State of Oregon filed a response to the motions to suppress. (Id.). Ms. Spencer also filed a second motion for an omnibus hearing on behalf of Becky Warmington on November 19, 2002. (Id.).
The Court held a second hearing on November 20, 2002, in which it considered the Warmingtons' motions to suppress. Both attorneys for the Warmingtons were present at that hearing, and gave arguments to the Court on the motions. (Id.). On December 3, 2002, the Court denied the Warmingtons' motions to suppress. (Id.).
II. LEGAL STANDARDS
Pursuant to Rule 56©) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "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." Fed.R.Civ.P. 56©); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.
The moving party bears the initial burden of proof. See Rebel Oil Company, Inc. v. Atlantic Richfield Company, 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted); See City of Mt. Pleasant, Iowa v. Associated Electric Cooperative, Inc., 838 F.2d 268, 273-274 (8th Cir. 1988) (it is sufficient for the movant to argue that the record does not contain an issue of fact and to identify that part of the record that supports that assertion).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
In addition to the requirements of Fed.R.Civ.P. 56(e), parties must also comply with the requirements set forth in Local Rule 56.1. Local Rule 56.1(b) provides in relevant part that:
(2) After responding to the movant's numbered paragraphs, the responding party may then articulate other relevant material facts which are at issue, or are otherwise necessary for the court to determine the motion for summary judgment.
Local Rule 56.1©) sets forth the requirements for a party's concise statement of facts, and requires a citation to particular evidence supporting a party's statement, acceptance, or denial of a material fact. Local Rule 56.1(e) provides in part that "the court has no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties."
III. DISCUSSION
Plaintiffs move for partial summary judgment based on the following arguments:
1) defendant Barry was required to obtain a warrant before entering and searching plaintiffs' fenced and gated backyard;
2) defendant Barry was required to obtain a warrant prior to the seizure of plaintiffs' dogs; and
3) defendant Horton violated plaintiffs' Fourth Amendment rights.
Defendants, in support of their motion for summary judgment and in response to plaintiffs' motion, make the following arguments:
1) plaintiffs failed to plead any claim based on the alleged failure to obtain warrants;
2) it is undisputed that plaintiffs' property was abandoned on December 7, 2001, and that Officer Barry's entry was lawful;
3) Officer Barry reasonably concluded that the puppies were endangered on December 7, 2001, and that exigent circumstances existed to enter and protect the puppies;
4) it is undisputed that the plaintiffs consented to taking the injured puppy to the vet;
5) it is undisputed that the puppy was not released to plaintiffs at the direction of the district attorney;
6) no warrant was required to seize the puppy as evidence of a crime;
7) issue preclusion precludes plaintiffs from relitigating the validity of the entry on their property and the removal of the dogs;
8) plaintiffs had no reasonable expectation of privacy in the property at 1536 Johnson Avenue because plaintiffs abandoned the property and their backyard was in plainview;
9) the entry onto the property was lawful under the emergency doctrine or because probable cause existed or under the special needs doctrine;
10) Officer Barry is not liable for the arrest or prosecution of plaintiffs;
11) the filing of the information immunizes Officer Barry from suit;
12) Officer Barry is entitled to qualified immunity;
13) Officer Horton is not liable because plaintiffs consented to taking the puppy to the vet, he lawfully took the dog as evidence of a crime, and he is entitled to absolute immunity for acting at the direction of the district attorney;
14) Officer Horton is not liable for the arrest and prosecution of plaintiffs because the prosecutor exercised independent judgment;
15) Officer Horton is entitled to qualified immunity;
16) Officers Horton and Barry are not liable for plaintiffs arrest because they did not arrest plaintiffs, the prosecutor exercised independent judgment, they only submitted an investigative report, probable cause supported the charges in the reports, and they are entitled to qualified immunity;
17) deputies Ferns and Weiland are not liable because they are immune from executing a court-ordered arrest warrant, plaintiffs have no right to be notified prior to their arrest, the arrest was reasonable, and the officers are entitled to qualified immunity;
18) Officer Barry is not liable for false arrest because he didn't arrest plaintiffs;
19) plaintiffs do not have a claim for false arrest because their confinement was lawful and the arrest was made pursuant to a court order;
20) the City is not liable for malicious prosecution because no city employee instituted criminal proceedings;
21) Officer Barry is not liable for malicious prosecution because he did not institute criminal proceedings and he did not act with malice toward plaintiffs;
22) plaintiffs claim for malicious prosecution fails because there was probable cause to prosecute plaintiffs and the filing of an information immunized the city from suit;
23) Officer Barry is not liable for false arrest because he did not arrest plaintiffs, the confinement of plaintiffs was lawful, and the doctrine of quasi-judicial immunity applies;
24) the County is not liable for malicious prosecution because no county employee instituted or insisted on the institution of criminal proceedings, no employee acted with malice toward plaintiffs, probable cause existed for their prosecution, and the filing of an information immunized the county from suit; and
25) Deputies Weiland and Ferns are not liable for intentional infliction of emotional distress because they were only motivated to do their jobs and their conduct did not constitute an extraordinary transgression of the bounds of socially tolerable conduct.
Plaintiffs, in response to defendants motion, make the following arguments:
1) plaintiffs' claims against defendant Barry are not barred by issue preclusion;
2) plaintiffs did not abandon their property at 1536 Johnson Avenue on December 7, 2001;
3) the plainview doctrine does not authorize the warrantless entry of the backyard and seizure of the dogs;
4) there was no emergency;
5) the special needs doctrine does not apply;
6) Officer Barry is liable for damages flowing from plaintiffs' arrest and prosecution, as well as invasion of privacy and possessory interest in their backyard and dogs;
7) Hector does not apply;
8) plaintiffs presented sufficient evidence to rebut the presumption that independent prosecutorial judgment is a superceding cause of plaintiffs' arrest and prosecution;
9) Officer Barry is not entitled to qualified immunity;
10) plaintiffs' did not consent to the retention of their dog;
11) the dog was not evidence of a crime when it was seized and it was clearly established that Deputy Horton was required to obtain a warrant to seize the dog;
12) there is a genuine issue of fact regarding prosecutorial immunity;
13) plaintiffs concede their damages regarding their possessory interest in the dog is limited to the point of their arrest.
In reply, defendants argue that:
1) plaintiffs have withdrawn all claims against Klamath County, Tracey Weiland, and Sean Ferns arising out of the conduct of Ferns and Weiland;
2) the only claim that remains against defendant Horton is the First claim;
3) the First and Second claim remain against defendant Barry;
4) plaintiffs cannot recover damages for the dispossession of their dog because they did not allege a claim for damages for the dispossession of their dog, plaintiffs did not incur any damages, and no warrant was required to seize the dog, and Horton was acting at the direction of the district attorney;
5) issue preclusion bars plaintiffs' claims;
6) Officer Barry reasonable concluded the property was abandoned;
7) plaintiffs cannot recover damages against Officer Barry for their arrest and prosecution;
8) plaintiffs cannot rebut the presumption of independent prosecutorial judgment; and
9) Officer Barry is entitled to qualified immunity.
At the hearing, plaintiffs conceded that the only claims remaining are the First claim against defendant Horton and the First and Second claims against defendant Barry. Therefore, defendants motion for summary judgment on plaintiffs' third and fourth claims should be granted.
First Claim
The First claim alleges that plaintiff's Fourth Amendment rights were violated by defendants Barry and Horton when an unreasonable search and seizure of their property occurred. Plaintiffs allege that defendant Barry entered their property at 1536 Johnson Avenue, searched the mail box, peered through the windows, entered the backyard and seized plaintiffs' two dogs and dog carriers, and turned over the dogs and carriers to the Klamath County Animal Control Officer Angrimsom without probable cause to enter or to search plaintiffs' property. (Complaint at 3-4).
Plaintiffs allege that when Mrs Warmington arrived at the Klamath County Humane Society to take possession of the dogs, defendant Horton refused to release one of the dogs because it was injured and ordered it seized as evidence of a crime without probable cause to believe a crime has been committed or that the dog was evidence of a crime. Defendant Horton filed a report with the District Attorney, who initiating a criminal prosecution against plaintiffs. (Complaint at 4). Plaintiffs allege that on December 10, 2001, defendant Horton informed plaintiffs that the dog would be held pending further investigation. (Complaint at 4-5). Defendant Barry Issue Preclusion
Defendants argue that issue preclusion precludes plaintiffs from relitigating the validity of defendant Barry's entry on their property and the removal of the dogs which was decided by the state court judge in ruling on motions to suppress. Plaintiffs argue that issue preclusion does not apply because they were acquitted of the charges rendering an appeal moot and depriving them of a full and fair opportunity to litigate the judge's rulings on the motions to suppress. Defendants argue that the court in Dixon applied Oklahoma law in concluding the parties did not have a fair opportunity to litigate, but, under Oregon law, the rulings on the motions to suppress would be given preclusive effect regardless of the opportunity to appeal the rulings.
The doctrines of res judicata and collateral estoppel are applicable to section 1983 actions in which plaintiffs attempt to relitigate in federal court issues decided against them in state criminal proceedings, including rulings on a motion to suppress.Allen v. McCurry, 449 U.S. 90, 95-105 (1980). These doctrines bar any subsequent action between the same parties over the same cause of action, and prevents litigation of all grounds and defenses that were or could have been raised in the action when the parties had a full and fair opportunity to litigate the issues. In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir. 1996). In opposing defendants motion for summary judgment, plaintiffs rely on cases applying Colorado, New York, Kansas, and federal law in determining whether issue preclusion applies. However, federal courts are required to give preclusive effect to state-court judgments whenever the courts of the state from which the judgment emerged would do so. Allen, 449 U.S. at 96. This court will apply Oregon law.
Oregon courts will give preclusive effect to a determination in a subsequent proceeding when:
"1) The issue in the two proceedings is identical.
2) The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.
3) The . . . [parties] had a full and fair opportunity to be heard on that issue.
4) The . . . [plaintiff was a party in or was] in privity with a party to the prior proceeding.
5) The prior proceeding was the type of proceeding in which Oregon courts will give preclusive effect."Dodd v. Hood River County, 136 F.3d 1219, 1225 (9th Cir.),cert. denied, 525 U.S. 923 (1998) (citations omitted).
It appears that the issues plaintiffs raised in this case, the propriety of Officer Barry's entry onto their property and seizure of their dogs, are identical to the issues raised in their motions to suppress in the state criminal proceeding. (Plaintiffs' Complaint and Defendants' Exhibit 109).
It also appears that these issues were actually litigated. In the state case, plaintiffs filed motions and legal memoranda, the court held two hearings on those motions, and the court ruled that Officer Barry's entry onto the property was valid. (Defendants' Exhibit 109). If the plaintiffs had been convicted, then, under Oregon law, the determinations on the motions to suppress would have been essential to the determination of the case and would have preclusive effect. Cf. State v. Stephens, 184 Or. App. 556, 563-564 (2002), review denied, 335 Or. 195 (2003). Since, the plaintiffs were acquitted of the criminal charges, it does not appear that the court's rulings on the motions to suppress were essential to the determination of the case. Therefore, defendants' motion for summary judgment based the doctrine of issue preclusion should be denied.
Abandoned Property
To be entitled to the protections of the Fourth Amendment, plaintiffs must show that they had an objectively reasonable expectation of privacy. Minnesota v. Carter, 525 U.S. 83, 88 (1998). This 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. U.S. v. Hoey, 983 F.2d 890, 892 (9th Cir. 1993). Whether an expectation of privacy is objectively reasonable is a question of law for the courts. U.S. v. Nerber, 222 F.3d 597, 599-560 (9th Cir. 2000).
Tenants who vacate property have no reasonable expectation of privacy in the property. See Abel v. U.S. 362 U.S. 217, 241 (1960). A warrantless search or seizure of abandoned property does not violate the Fourth Amendment. Id. at 245; U.S. v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986).
Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. . . . Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.Hoey, 983 F.2d at 892. This determination is made based on the totality of the circumstances. Nordling, 804 F.2d at 1469.
Plaintiffs concede that defendant Barry had probable cause to believe that the dogs were abandoned. Therefore, his seizure of the dogs as abandoned property did not violate the Fourth Amendment, and defendants are entitled to summary judgment on this claim.
Defendants have presented the following facts to support that plaintiffs abandoned the property and the dogs and did not have an objectively reasonable expectation of privacy:
Plaintiffs failed to pay their rent in a timely manner, which resulted in Mr. Lord mailing them a notice of termination. Plaintiffs' rent was paid through only November 30, 2001. Plaintiffs phone and cable were disconnected. Mr. Lord went to the residence on several occasions and plaintiffs were not there.
Prior to December 7, 2001, plaintiffs had moved most of their belongings out of the residence. On the evening of Friday, December 7, 2001, defendant Barry spoke with plaintiffs' neighbor Mr. Botelho. He informed defendant Barry that the plaintiffs had moved out on Wednesday. Mr. Botelho told defendant Barry plaintiffs had left the dogs in the backyard, and that he had not seen the plaintiffs return since the afternoon of December 5. Mr. Botelho informed defendant Barry that dogs had not been fed or watered for three days, and that, when he gave them food that evening, they ate it rapidly as if they were very hungry.
Defendant Barry did not see any vehicles in the driveway at 1536 Johnson. He observed an empty storage shed with its doors open. He peered into the windows and the house appeared vacant. He then went into the backyard.
Defendant Barry observed that the dogs were not being adequately fed, watered, or sheltered. There was four inches of snow on the ground and freezing temperatures. There was a large amount of dog feces on the ground.
Plaintiffs present the following evidence and argue that this evidence creates an issue of fact regarding whether they abandoned the property:
The rent was paid until November 30, and it was their understanding that they could keep possession until December 12. (Supp. Warmington Decl.). They made plans to meet with Mr. Lord, have the property inspected, and return the key. They returned to the property on December 8 to retrieve the dogs and their remaining possessions. They returned to the property on December 9 to meet Mr. Lord and return the keys.
The court finds, based on the totality of the circumstances, that plaintiffs did not have a reasonable expectation of privacy in the property or the dogs. It was reasonable to conclude that both the property and the dogs were abandoned. Plaintiffs concede defendant Barry had probable cause to believe the dogs were abandoned. The court finds that plaintiffs' evidence does not create an issue of fact regarding whether their expectation of privacy was reasonable under the circumstances. Therefore, defendant Barry's search of the abandoned property and seizure of the abandoned dogs and their carriers did not violate the Fourth Amendment, and defendants are entitled to summary judgment on this claim.
In the alternative, the court finds that defendant Barry's entry onto the property and seizure of the dogs was proper under the exigent circumstances/emergency doctrine exception to the warrant requirement and under ORS 133.033. The dogs were clearly in danger from neglect. They had not been fed or watered for three days. Their shelter was inadequate, in freezing conditions. There was feces around the dog houses. The dogs were not being provided the minimum care required. Therefore, defendants are entitled to summary judgment on this claim.
Defendant Horton
ORS 133.535 allows police officers to seize evidence of the commission of a crime. ORS 167.325 provides in part that:
A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such person's custody or control.
Under federal law, an officer may seize evidence of a crime that is in plainview 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).
Defendants have presented undisputed evidence that: Defendant Horton is both an animal control officer and a reserve police officer. He observed that the dog was injured and in need of treatment due to the dog's collar being imbedded in its flesh. He asked for and received permission from Mrs Warmington to transport the injured dog for treatment to the veterinarian, Dr. Wilson.
Dr. Wilson found that the dog had a neck lesion which was caused by a collar that had not been adjusted or replaced as the pup grew. The collar had caused tissue death around the puppy's neck. Dr. Wilson concluded that the lesion was not a fresh cut that had been recently caused. This was evident from the fact that the margins of the skin showed new tissue growth that was granulating as if to enclose a collar. The lesion was also chronically infected, and significant skin death had occurred. The lesion involved a pressure necrosis that had to have taken at least a week, if not more, to develop. This injury was consistent only with the failure to adjust or replace a puppy's collar as it grew. In his thirteen years as a veterinarian, Dr. Wilson had seen similar injuries. The prior cases had always involved dog owners neglecting to adjust or replace a collar as the puppy grew.
Later that day, Dr. Wilson called defendant Horton about releasing the dog to Mr. Warmington. Defendant Horton called Deputy District Attorney Parks who instructed defendant Horton to instruct Dr. Wilson not to release the dog. Plaintiffs have presented evidence that Mr. parks does not remember making that statement.
Based on the undisputed facts, the court finds that defendant Horton's warrantless seizure of the dog did not violate the Fourth Amendment. It is clear that the dog was evidence of the crime of animal neglect under Oregon law, and under both state and federal law, defendant Horton was authorized to seize the dog as evidence of a crime without a warrant.
Second Claim
Plaintiff's second claim alleges their Fourth Amendment rights were violated by defendant Barry when an unreasonable seizure of their persons occurred.
The filing of a criminal complaint immunizes investigating officers . . . from damages suffered thereafter because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused's arrest exists at the time. This presumption may be rebutted, however. For example, a showing that the district attorney was pressured or caused by the investigating officers to act contrary to his independent judgment will rebut the presumption and remove immunity. . . .
where police officers do not act maliciously or with reckless disregard for the rights of an arrested person, they are not liable for damages suffered by the arrested person after the district attorney files charges unless the presumption of independent judgment by the district attorney is rebutted.Smiddy v. Varney, 665 F.2d 261, 266-267 (9th Cir. 1981),cert. denied, 459 U.S. 829 (1982).
Defendants have presented evidence that the Klamath County District Attorney exercised independent judgment and investigated the case himself before deciding to file the Information charging plaintiffs. (Defendants' Exhibit 106). The Klamath County District Attorney also stated that he was not pressured in any manner to act contrary to his independent judgment. (Id.). Plaintiffs have presented evidence that defendant Barry omitted Mr. Warmington's statements that there were two witnesses who saw the dogs being fed and watered.
The court finds that it is undisputed that the Klamath County District Attorney exercised independent judgment in determining to file the Information against plaintiffs which led to their arrest and prosecution. These independent actions created a break in causation, and, therefore, defendant Barry is not liable for damages based on plaintiffs' arrest or prosecution. See Smiddy v. Varney, 665 F.2d 261, 267 fn. 2 (9th Cir. 1981). Based on the foregoing, defendants are entitled to summary judgment on plaintiffs' second claim.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that plaintiffs' motion for partial summary judgment (#30) be denied, defendants' motion for summary judgment (#35) be granted, and this case be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.