Opinion
02-CV-592A.
June 17, 2004
DECISION AND ORDER
BACKGROUND
Plaintiffs are owners of a dairy farm in Scio, New York, which is located in Allegany County. They allege that the defendants made false assertions that the plaintiffs' cows were malnourished, and based on those assertions, obtain ed a warrant to enter and search plaintiffs' property and seize approximately 115 dairy cows. Plaintiffs further allege that Judge Glee A. Turybury, the Scio Town Justice, improperly authorized the sale of the cows when the plaintiffs could not pay for their care while in the custody of Allegany County.
This matter was referred to the Honorable Victor Bianchini, United States Magistrate Judge, for a Report and Recommendation on motions to dismiss filed by Judge Turybury, Gordon Wuethrich, Thomas David Becker and the United States. Magistrate Judge Bianchini issued a Report and Recommendation dated June 10, 2003. While objections to Magistrate Judge Bianchini's Report and Recommendation were pending, plaintiffs filed an amended complaint which was nearly identical to the original complaint. In order to timely respond to the amended complaint, defendants Turybury and Wuethrich filed motions to dismiss the amended complaint on the same grounds as their previous motions with respect to the original complaint. Defendant Wuethrich also filed a motion for summary judgment with respect to the amended complaint. The Court denied defendants' objections to Magistrate Judge Bianchini's Report and Recommendation concerning the original complaint by Decision and Order dated January 30, 2004, and dismissed the claims against the United States, Robert McNeil, Lakewood Veterinary Services and Judge Turybury and denied defendants Becker's and Wuethrich's motions to dismiss.
The amended complaint differed from the original complaint in the following respects: (1) the caption was amended to name Bobbi Jo Running Brook Sheehy as a plaintiff individually rather than as an infant, and (2) the thirteenth claim was amended to allege that defendants Wehlage, McNeil and Lakewood Veterinary Service, which is listed in the caption as Lake Veterinarian Service, acted under color of state law. Strangely, the amended complaint listed the American Society for the Prevention of Cruelty to Animals ("ASPCA") as a defendant, despite the fact that on January 7, 2003, with leave of the Court, the plaintiffs voluntarily dismissed the claims against the AS PCA in the original complaint.
Defendants Mary Ann Wehlage, Allegany County Society for the Prevention of Cruelty to Animals, ("Allegany SPCA"), Robert McNeil, and Lakewood Veterinary Service did not make motions with respect to the amended complaint. Mary Ann Wehlage and Allegany SPCA filed an answer to the amended complaint. Neither Robert McNeil nor Lakewood Veterinary Service has filed an answer to the amended complaint. The United States was not named as a defendant in the amended complaint and therefore did not answer or otherwise plead with respect to the amended complaint. The Court previously substituted the United States as defendant for Wuethrich and Becker with respect to the first twelve claims in the original complaint and granted summary judgment for the United States on those claims. Furthermore, as defendant Thomas David Becker is serving overseas with the military, all proceedings are stayed with respect to him.
The claims against the United States and Judge Turybury were dismissed with prejudice, but the claims against Robert McNeil and Lakewood Veterinary Service were dismissed without prejudice and with leave to re-plead.
While Magistrate Judge Bianchini was considering the motions with respect to the original complaint, the case was referred to Magistrate Judge Hugh B. Scott for all purposes. Therefore, Magistrate Judge Scott heard the motions to dismiss and the motion for summary judgment with respect to the amended complaint. In his Report and Recommendation dated November 12, 2003, Magistrate Judge Scott concluded that for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, Judge Turybury's motion to dismiss should be granted and Gordon Wuethrich's motion to dismiss should be denied. Magistrate Judge Scott also concluded that Gordon Wuethrich's motion for summary judgment should be granted on grounds of qualified immunity. Pending before the Court are plaintiffs' objections to the Report and Recommendation concerning the amended complaint. The Court heard oral argument on these objections on May 5, 2004.
DISCUSSION
The district court reviews de novo the portions of a Report and Recommendation to which objections have been filed. See 28 U.S.C. § 636(b)(1)(A). If a party fails to object to a portion of a Report and Recommendation, further review is generally precluded. See Mario v. P C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). Upon de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts in part the proposed findings of the November 12, 2003 Report and Recommendation.
Motions to Dismiss
This Court's January 30, 2004 Decision and Order concerning the original complaint granted Judge Turybury's motion to dismiss plaintiffs' claims against him and denied Gordon Wuethrich's motion to dismiss. The Court reaches the same conclusions with respect to the motions addressed to the amended complaint. For the reasons stated in this Court's January 30, 2004 Decision and Order, Gordon Wuethrich's motion to dismiss is denied and Judge Turybury's motion to dismiss is granted. All claims against Judge Turybury are dismissed with prejudice.
In the November 12, 2003 Report and Recommendation concerning the amended complaint, Magistrate Judge Scott also concluded that Judge Turybury should be awarded costs for his motion to dismiss the amended complaint. Magistrate Judge Bianchini's Report and Recommendation concerning the original complaint instructed that both objections to that Report and Recommendation and the amended complaint were to be filed within ten days of receipt of the Report and Recommendation. Therefore, to comply with those instructions, plaintiffs had to file the amended complaint on the tenth day after service of the Report and Recommendation, without regard to whether defendants might file objections to the conclusions of the Report and Recommendation.
While it may have been reasonable for plaintiffs to include in the amended complaint claims to which defendants could have filed objections on the tenth day, it was unreasonable for plaintiffs to include the claims against Judge Turybury in the amended complaint. If, as plaintiffs argue, there was a legal basis for the claims against Judge Turybury, then plaintiffs should have filed objections to Magistrate Judge Bianchini's recommended ruling that those claims be dismissed. Logically, only plaintiffs would have objections to Magistrate Judge Bianchini's conclusions with respect to the claims against Judge Turybury. By failing to file objections to Magistrate Judge Bianchini's Report and Recommendation, plaintiffs waived any argument they may have had with respect to the propriety of the dismissal of the claims against Judge Turybury. Therefore, the Court concludes that an award of costs is appropriate in this case. Judge Turybury should submit a statement of costs to the Clerk in accordance with the Federal Rules of Civil Procedure and the Local Civil Rules.
Summary Judgment Motion
The only new motion presented at this time is defendant Wuethrich's motion for summary judgment. In his Report and Recommendation, Magistrate Judge Scott concluded that defendant Wuethrich is entitled to qualified immunity and recommended that summary judgment be granted on that basis. In light of the absence of any analysis of the qualified immunity doctrine in the Report and Recommendation, the Court cannot adopt the conclusions of the Magistrate Judge in this regard. The Court concludes, however, that defendant Wuethrich's motion for summary judgment should be granted for the reasons discussed below.
The plaintiffs allege that Wuethrich, an employee of the Farm Services Agency, a division of the United States Department of Agriculture, provided a false statement which was used by the New York State Police and the Allegany County SPCA to obtain a search warrant for plaintiffs property. Plaintiffs allege that as a result of the execution of the warrant, their dairy cattle were seized and later sold at auction. In denying defendant Wuethrich's motion to dismiss the original complaint, the Court found these allegations sufficient to state a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). In order to be subject to liability for a Constitutional violation under theBivens doctrine, there must be some evidence that the federal employee had direct, personal involvement in the Constitutional violation. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987); Tejeda v. Reno, 2000 WL 1280969 (S.D.N.Y. Sept. 11, 2000).
In support of his motion for summary judgment with respect to the amended complaint, defendant Wuethrich provided a Local Rule 56.1 Statement of Facts Not in Dispute, several affidavits and a Memorandum of Law. Defendant Wuethrich admits that he signed an affidavit regarding the condition of plaintiffs' cattle. However, he has demonstrated that there is no genuine issue of material fact because his affidavit was not used to support the application for the search warrant. Defendant Wuethrich has provided a copy of the application for the search warrant, and his affidavit is neither attached to nor referenced in the warrant application. According to the New York State Trooper who filed the application, the application was based on facts learned through police investigation, the SPCA and the affidavit of Thomas Becker. No mention is made of a statement by defendant Wuethrich. Moreover, the application for the warrant is dated August 22, 2001. The search warrant was also issued and executed on August 22, 2001. Defendant Wuethrich's affidavit, the only document plaintiffs rely on to show his involvement in the application for the search warrant, is originally dated September 5, 2001, and later notarized on September 18, 2001. The facts shown by defendant Wuethrich's submissions demonstrate an absence of genuine issue of material fact as to whether defendant Wuethrich participated in the procurement of the search warrant. Thus, even if the affidavit was false, since it was not used to procure the search warrant, defendant Wuethrich cannot be liable under Bivens for any violation of plaintiffs' rights stemming from the issuance and execution of the search warrant.
In their objections to Magistrate Judge Scott's Report and Recommendation and at oral argument, plaintiffs allege that defendant Wuethrich's statement may have been used in an unsigned form, or that he may have made oral statements which were used to support the warrant. Plaintiffs have come forward with no facts to support these allegations. The plaintiffs also allege that the Town Court must have relied on Wuethrich's affidavit since it was in the court's possession. Again, plaintiffs have not provided any factual support for the allegations that the document was possessed by the court or that the court relied on it in issuing the search warrant. The Court recognizes that no discovery has been conducted, but plaintiffs could have obtained public information from the Town Court to verify whether or not Wuethrich's statement was relied upon for support of the warrant.
In the affidavit submitted by plaintiffs' counsel, she states that she obtained a copy of Wuethrich's affidavit from the attorney defending plaintiffs on the animal cruelty charges. She states that the defense attorney obtained the document from the town court. However, she does not have personal knowledge that the town court possessed Wuethrich's statement.
Although plaintiffs' counsel's affidavit mentions discovery pursuant to Fed.R.Civ.P. 56(f), no formal motion was made specifying the type of discovery necessary to defend against the motion.
In the face of the evidence putforth by defendant Wuethrich showing that there is no genuine issue of material fact, plaintiffs' bald allegations are insufficient to defeat this motion, and therefore Gordon Wuethrich's motion for summary judgment is granted.
This is to say nothing of the fact that plaintiffs' opposition to the motion for summary judgment was procedurally defective in that no statement of facts in dispute was filed as required by Local Rule 56.1 and no affidavit from a party with personal knowledge of the facts was submitted.
CONCLUSION
As discussed above, Judge Turybury's motion to dismiss is granted and all claims against him are dismissed with prejudice, and costs will be awarded for filing the motion to dismiss the amended complaint. Defendant Wuethrich's motion to dismiss is denied and his motion for summary judgment is granted. Plaintiffs have failed to establish a genuine issue of material fact as to whether defendant Wuethrich had any direct, personal involvement in obtaining or executing the search warrant for plaintiffs' property.The Court concludes that the case stands as follows: (1) all claims remain as against defendants Mary Ann Wehlage and the Allegany County SPCA; (2) defendants Mary Ann Wehlage and Allegany County SPCA have filed an answer to the amended complaint; (3) all claims remain against defendants Robert McNeil and Lakewood Veterinary Service; (4) neither defendant McNeil nor Lakewood Veterinary Service have filed an answer to the amended complaint; (5) claim thirteen remains against defendant Thomas David Becker, but all proceedings against defendant Becker, including the time in which he is to file an answer to the amended complaint, are stayed until such time as he returns from overseas military service; and (6) all claims against defendants Glee Turybury, Gordon Wuethrich and the United States have been dismiss ed.
The case is referred back to Magistrate Judge Hugh B. Scott for all purposes, including setting a date for an answer to be filed by defendants Robert McNeil and Lakewood Veterinary Service. Discovery should commence without delay.
IT IS SO ORDERED.