Opinion
A-99-CA-229 AWA
February 13, 2001
ORDER
Before the Court are Defendants The City of Austin, Tomas Martinez and Joseph Seely's Motion to Dismiss for Failure to State a Claim, or in the Alternative Motion for Summary Judgment (Clerk's Doc. No. 33); Plaintiff's Response and Cross-Motion for Partial Summary Judgment (Clerk's Doc. No. 41); City of Austin's Reply to Plaintiff's Response and Response to Plaintiff's Cross-Motion for Partial Summary Judgment (Clerk's Doc. No. 50); Plaintiff's Reply to the City's Response (Clerk's Doc. No. 52); Defendants Travis County and Michael Parsons' Motion for Summary Judgment (Clerk's Doc. No. 34); Plaintiff's Response and Cross-Motion for Summary Judgment (Clerk's Doc. No. 40); Defendants Travis County and Michael Parsons' Reply to Plaintiff's Response and Response to Plaintiff's Cross-Motion for Summary Judgment (Clerk's Doc. No. 49); and Plaintiff's Reply to Travis County's Response (Clerk's Doc. No. 53). The Court conducted a hearing on the above motions on December 15, 2000.
Also before the Court were Defendant Austin-Travis County Humane Society's Motion for Summary Judgment (Clerk's Doc. No. 35); and Plaintiff's Response and Motion for Declaratory Judgment (Clerk's Docket No. 39). Prior to the hearing, however, the Plaintiff and the Humane Society reached a settlement agreement. Accordingly, the Court hereby DENIES AS MOOT both of these motions.
I. INTRODUCTION
This case — based on events which took place morn than 10 years ago — is unusual and troubling from almost any perspective. Unusual because it involves the death of a an endangered species as a result of the anaesthesia used to subdue and seize it from its cage in the Plaintiff's backyard. Troubling because the events which gave rise to the suit could so easily have been avoided if either of the two primary parties — Mr. Bruner and the City of Austin — had not been so uncompromisingly stubborn. For example, had the City of Austin brought Mr. Bruner to court to determine its rights under the newly-revised "dangerous animal" ordinance before it entered his house with a show of force appropriate for a major drug seizure, it is likely that none of these events would have transpired. For Mr. Bruner's part, had he collared his dogs and moved his tiger to the trailer intended for its transport (instead of making entry into his backyard nearly impossible), there would never have been a need to tranquilize the tiger, and it would be alive today. Even more troubling is that because each of these parties were unable to get beyond their unwavering certainty of correctness, the Court is now faced with an unbelievably complicated set of Constitutional and statutory issues to resolve, all in a case that on the surface looks relatively simple. This is the very sort of case that could prove the old law school adage that "hard cases make bad law." But make no mistake about it — whatever bad law this case might make, it will be of the parties' own doing for letting their dispute reach this Court.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the burden of showing that there is an absence of evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553-54 (1986); Coleman v. Houston Independent School District, 113 F.3d 528, 533 (5th Cir. 1997). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
As already noted, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in the non-movant's favor. Coleman, 113 F.3d at 533. If the nonmovant sets forth specific facts in support of allegations essential to his claim, a genuine issue of material fact is presented, and summary judgment is inappropriate. Unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a proper motion for summary judgment. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2509-10)). Rather, the nonmoving party must set forth specific facts showing the existence of a "genuine" issue concerning every essential component of its case. Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997). The standard of review "is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record before the court." James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986)). Applying these standards, the Court turns to the merits of the motion for summary judgment.
III. FACTUAL BACKGROUND
Plaintiff, Timothy Bruner ("Bruner"), kept a pet Bengal tiger, "Josie", in a permanent cage located in the backyard of his residence. Bruner also kept other exotic animals at this residence including a panther and jaguar. On January 12, 1989, the City of Austin ("City") passed ordinance 890112G (codified at Section 3-1-3 of the Austin City Code) ("Ordinance") which redefined and ordered new rules designed to regulate the keeping of dangerous animals within the City of Austin. Shortly after adopting the Ordinance, the City determined Bruner was violating it.
Substantively, the undisputed facts upon which the Court must rely for the purposes of the pending motions for summary judgment, are as follows: Bruner housed three wild animals in his backyard including a jaguar, a panther, and a Bengal tiger. Bruner and the City of Austin had been involved for several years in a disagreement over the housing of the animals within the City limits. Responding to several complaints by his neighbors, including a report that the panther chased a neighbor into her home when she attempted to go onto her driveway, the City began an effort to have Bruner move his animals outside of the City limits. City officials had several meetings with Bruner discussing their contention that housing the animals within the city limits was a violation of the newly-enacted Ordinance. Beginning as early as January of 1989. Defendant Seely had conversations with Bruner regarding the City's intention to impound the animals if Bruner did not re-locate them by March 1, 1989. On February 21, 1989, Mr. Seely phoned Bruner to inquire whether he intended to comply with those requests and he replied that he had no intention of moving his animals. On the advice of his attorney, Bruner called Mr. Seely two days later to initiate more negotiations. The City extended the March 1, 1989 deadline at Bruner's request. In March of 1989, the panther and the jaguar were re-located, leaving only the tiger on Bruner's property. Negotiations soon broke down and Bruner again refused to move the tiger.
Subsequently, the City met with the City Attorney's office who advised that the Ordinance was sufficient authority to impound the tiger as opposed to obtaining a court order to do so. In a March 29, 1989 memo addressed to the Assistant City Manager, Dr. Solbritt Murphy, Director of the Health Department, summarized the advantages and disadvantages of obtaining a court order, and devised a step-by-step plan to impound the tiger. Between March 29, 1989, and April 19, 1989, the plan was apparently approved, given that on April 19, 1989, Thomas Martinez and Joe Seely, City of Austin animal control officers, obtained a warrant to enter Bruner's home and search for and seize the tiger. The same date the Health Department posted a notice on Bruner's door stating that arrangements had been made to impound the tiger if he did not re-locate the tiger within 48 hours. On April 21, 1989, Martinez and Seely, along with Austin Police Department Officers and representatives from Austin-Travis County Humane Society, executed the warrant and seized the tiger. The assistance of the officers was necessary to enter the home. Bruner was asked to remove his dogs from the backyard, which were very agitated by the presence of the officers. Bruner refused, and the dogs were then captured by the animal control officers, who removed them from the backyard. Bruner was again asked to assist in the impoundment by loading the tiger into his carrying cage. He refused. He was informed that without his assistance, anaesthetization would be necessary, and he again declined to assist.
Because the City of Austin did not have access to the equipment necessary to tranquilize a tiger, it contacted Travis County, which owned a tranquilizing dart gun. Travis County employee Michael Parsons agreed to assist the City by operating the gun. To Parsons' knowledge, Travis County had not performed such services for the City before or since. The City contacted its veterinarian, Dr. Tommy Beckett, who in turn contacted Dr. Leo Staley because he had experience with exotic animals, both of whom consulted on the seizure of the animal and issued the orders on the anaesthetization dosage. Dr. Staley measured the amount of tranquilizer and loaded 2.5cc of Xylazine hydrochloride into a syringe, and Parsons loaded the pre-measured solution into the dart gun. Parsons shot the tiger twice with a tranquilizer dart and Dr. Staley issued one dose by hand. After the tiger was tranquilized, the City employees removed a barricade of dirt piled against Bruner's fence (in an apparent attempt to prevent their entry) removed a section of Bruner's fence, cut the lock to the tiger's cage, carried her out on a tarpaulin, loaded her into a carrier, and then lifted her into a trailer by forklift.
The City has submitted uncontroverted summary judgment evidence that the type and amount of anaesthesia were typical for the type and weight of the animal. Furthermore, Dr. Staley testified by affidavit that it was not unusual for the tiger to require more than one shot because the dart could have hit fatty tissue and the anaesthesia would not have been absorbed into the blood stream.
The City officials transported the tiger to the Humane Society. Dr. Beckett and Dr. Staley accompanied the tiger to the Humane Society and performed an evaluation which was initially unremarkable. In a subsequent evaluation, the two veterinarians noticed the tiger exhibiting signs of awakening and for safety reasons, they exited the cage. Dr. Staley gave instructions to the Humane Society employees to contact him or Dr. Beckett, when the tiger awoke from the anaesthesia. However, the next time the tiger was checked, it was dead. Subsequently, the tiger's body was sent to Texas AM University for a necropsy to determine the cause of death. It was determined from that review that the tiger had aspirated its own regurgitation, and choked to death. The tiger, which had been dismembered in the process of the necropsy, was later returned to the Plaintiff in several plastic bags.
Procedurally, this case had a long history prior to its removal to federal court. Bruner originally filed the case in state district court on October 25, 1990, alleging violations of the state penal code, the state code of criminal procedure, and the Texas Constitution. An amended petition filed three years later alleged a violation of the Texas Tort Claims Act. In 1994, the state district court granted summary judgment in favor of one of the individual Defendants, Dr. Leo Staley, a veterinarian who assisted the City in tranquilizing the tiger. The case lay dormant from that point until 1999, when the state district court placed the case on its dismissal docket. Bruner's motion for retention was granted and the case was unsuccessfully mediated the same year. Bruner filed a Second Amended Petition on March 31, 2000, adding federal causes of action as well as a claim for declaratory relief. Defendants then removed the case to federal court on April 6, 2000. The parties consented to trial before the United States Magistrate Court and the case was transferred to this Court on June 7, 2000. Bruner filed a Third Amended Complaint on August 2, 2000, adding a claim for attorney's fees.
IV. LEGAL ANALYSIS
A. Travis County
Bruner alleges six causes of action against all Defendants, including Travis County: (1) a claim under 42 U.S.C. § 1983 that Travis County took Bruner's property for a public use without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution; (2) a claim that Travis County took Bruner's property without compensation in violation of Article I, Section 17 of the Texas Constitution; (3) a claim under § 1983 that Travis County illegally searched Bruner's home and seized Bruner's property in violation of the Fourth Amendment to the United States Constitution; (4) a claim that Travis County searched and seized Bruner's property in violation of Article I, Section 9 of the Texas Constitution; (5) a claim that Travis County destroyed his property and thereby violated his substantive due process rights; and (6) a request for a declaration under the Texas Civil Practices and Remedies Code that Travis County (among others) took Plaintiff's property in violation of Article I, Section 17 of the Texas Constitution, and seized his property in violation of the Fourth Amendment, and Article I, Section. 9 of the Texas Constitution.
The suit actually names as defendants both Travis County and Michael Parsons in his official capacity as an employee of Travis County. The suit against Parsons is appropriately construed as a suit against Travis County, Monell v. Dep't of Social Services, 436 U.S. 658, 690 n. 55 (1978), and the Court will therefore refer to both defendants here as "Travis County."
The County alleges that these claims should be dismissed for a variety of reasons. First, the County seeks the dismissal of all of the federal claims under Monell v. Dep't of Social Services, 436 U.S. 658 (1978), based on the County's contention that the Plaintiff has failed to demonstrate that the County's actions were taken pursuant to an official custom, policy, or practice. Second, with regard to the Texas takings claim, the County contends that the claim is not viable because the Texas takings provision does not apply to personality, and because there is no evidence that Travis County intended to take Plaintiff's property. In addition, the County contends that the evidence demonstrates that it had no involvement in the issuance or execution of the search warrant, and thus it cannot be held liable for any violation of Bruner's Fourth Amendment rights or rights under Article I, Section 9 of the Texas Constitution. With regard to the claim under Article I, Section 9 of the Texas Constitution, the County also moves for judgment because there is no private right of action for violations of the Texas Constitution (with the exception of takings claims under Article I, Section 17 of the Texas Constitution). On all of the claims, the County also contends in the alternative that its actions were at best negligent, and thus it was not sufficiently culpable to be held liable for a taking or illegal search or seizure. Lastly, the County alleges that the Plaintiff's request for declaratory relief should be dismissed because there is no justiciable controversy between the parties. Bruner has filed a response and cross-motion, by which he seeks a judgment in his favor on each of these causes of action. The Coutt will address only those of these arguments that are necessary to disposition of the motion.
1. Section 1983 Claims.
With regard to the claims for federal constitutional deprivations brought under § 1983 ( i.e., the takings claim, the search and seizure claim, and the substantive due process claim under the U.S. Constitution), in order to impose liability on a governmental entity like a county under § 1983, the decisions of the Supreme Court and the Fifth Circuit require proof of: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose "moving force" is the policy or custom. Monell v. Dep't. of Social Sciences, 436 U.S. 658, 694, (1978). The Plaintiff's claims against Travis County fail on all three of these grounds. Specifically, the Plaintiff completely fails to point to any County policymaker who was involved in any fashion in the events leading up to the death of the tiger. Indeed, the only County employee mentioned anywhere in the summary judgment evidence is Parsons, whose was the supervisor of the Travis County Rabies Control Program, and there is no summary judgment evidence indicating that anyone other than Parsons approved of — much less was aware of — the use of the dart gun.
Although the cases in the Monell line routinely refer to the case insulating "municipalities" from liability, the defense actually applies to counties (and other governmental bodies). Indeed, in Monell, the Supreme Court stated:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.Monell, 436 U.S. at 690 (emphasis added).
Likewise, no County policy is pointed to as the cause of the tiger's seizure, much less its death. Indeed, Travis County submitted evidence that a request to borrow the dart gun had never been made by any other agency prior to this case. Accordingly, Travis County had never formulated any policy regarding such matters, nor is there evidence that the County has since developed such a policy. Ordinarily, where the policy at issue is not unconstitutional in itself a policy, practice or procedure cannot be inferred from a single constitutional violation. Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). See also, Webster v. City of Houston, 735 F.2d 838, 851 (5th Cir. 1984) (en bane); Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985) ("Isolated violations are not the persistent, often repeated, constant violations, that constitute custom and policy as required for municipal section 1983 liability.")
Similarly, there is no evidence that an official policy of Travis County — assuming one had been identified — was the "moving force" of the injury complained of by Plaintiff. Such causation is an essential element of a § 1983 claim:
[Section 1983] imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights . . . Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "causes" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.Monell, 436 U.S. at 692. "That is, a plaintiff must show that the [governmental unit's] action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the action and the deprivation of federal rights." Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 403, 404 (1997). The Fifth Circuit has echoed this same sentiment in numerous decisions. See, e.g., Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (to hold a local government unit liable under § 1983 a plaintiff must demonstrate that an official policy or custom "was a cause in fact of the deprivation of rights inflicted"); Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (same).
Bruner's allegations of liability do not meet the above requirements with regard to the County. The undisputed evidence demonstrates that the tiger was seized pursuant to a City ordinance, based on a decision by City officials to move forward with a seizure, on the authority of a warrant obtained by City officers, and that it was City employees who cut the lock on the tiger's cage, moved the Plaintiff's fence, lifted the tiger into a trailer, and transported it to the Humane Society — the agency the City contracted with to care for animals in the City's control. Travis County had nothing to do with any of these actions. The County's sole involvement in these events was its loan to the City of the dart gun and someone to fire it — involvement that is simply too attenuated for liability to attach.
For all of these reasons, the claims against Travis County brought under § 1983 must be dismissed. As noted at the outset, Bruner also names Travis County as a defendant in his state law takings claim, his state law illegal search and seizure claim, and his declaratory judgment act claim. Because Monell applies only to the claims under § 1983, the Court must deal with the state law claims separately.
2. State Law Claims.
Plaintiff alleges that Travis County violated Article I, Section 9 of the Texas Constitution by entering his home and seizing his property pursuant to an invalid search warrant. The Texas Constitution does not provide for a private cause of action for damages. Bagg v. University of Tex. Medical Branch at Galveston, 726 S.W.2d 582, 584 n. 1 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e) (Texas law does not provide a "state 'constitutional tort'"). Moreover, the evidence overwhelmingly demonstrates that the County had nothing to do with the search of Bruner's home. The warrant was obtained by City employees, based on the affidavit of a City employee, and was executed by City employees. Thus, no County employee participated in either obtaining or executing the warrant. Accordingly, the County's motion for summary judgment on Bruner's claims under Article 1, Section 9 of the Texas Constitution is meritorious and will be granted.
With regard to the Texas law takings claim, the result is the same. The only involvement that the County had in this whole fiasco was that its dart gun, and the operator of the gun, were borrowed from the County. The County made no policy or other decisions related in anyway to the seizure of the tiger, and never exercised any control over the tiger. The entire operation was a City of Austin operation, and the undisputed summary judgment evidence demonstrates that the County did not cause a taking of the Plaintiff's property. Champion Builders v. City of Terrell Hills, 2001 WL 98356 (Tex.App.-San Antonio, 2001). Summary judgment is therefore appropriate on this claim as well.
The remaining state law claim is Bruner's request for several declarations under the Texas Uniform Declaratory Judgments Act (TEX. CIV. PRAC. REM. CODE § 37.001, et seq.) ("TUDJA"). The TUDJA is merely a procedural device, and does not provide a substantive remedy in and of itself. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746, 752 n. 3 (5th Cir. 1996). Given that the case is pending in federal court, one would think that the appropriate vehicle for declaratory relief would be the federal law equivalent of the TUDJA, found at 28 U.S.C. § 2201. Regardless, the claim cannot proceed under either statute. For example, under the Texas act, the declaratory relief requested must present a case or controversy different from that presented in the substantive causes of action. Howell v. Mauzy, 899 S.W.2d 690, 706 (Tex.App.-Austin, 1994, writ denied); Johnson v. Hewitt, 539 S.W.2d 239 (Tex.App.-Houston [1st Dist] 1976, no writ). Under federal law, the Courts possess discretion in determining whether and when to entertain action claims for declaratory relief. Wilton v. Seven Falls Company, et al., 515 U.S. 277 (1995). Clearly a district court need not accept a redundant declaratory counterclaim (or even a separate suit), and may reserve making a decision on whether declaratory relief is appropriate until after decision on the plaintiff's claim. Morton International, Inc. v. Cardinal Chemical Company 967 F.3d 1571 (Fed. Cir. 1992) (Chief Judge Nies, dissenting) (citing Borchard, Declaratory Judgments 814 (1941)). The standard is whether the declaratory relief would be appropriate as cumulative or alternative relief. See also 10B Wright, Miller and Kane, Federal Practice and Procedure § 2759 (1998). Although FED. R. CIV. P. 57 provides that "[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in an appropriate case," if a declaratory judgment would be redundant with the relief already sought for constitutional violations it is appropriate to dismiss it. See Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904 (6th Cir. 1999).
That is the case here. Specifically, the declaratory relief requested in this case merely asks that the Court declare exactly the same facts the Plaintiff must prove to prevail on his substantive claims. Further, the parties have no ongoing relationship which requires the declaration of rights so that future dealings can take place under clear rules, given that their dispute is now far in the past. Indeed, the declaratory judgment claim adds nothing to the case, and appears to be a rather transparent attempt by Plaintiff to add an alternative basis for the recovery of his attorney's fees to his suit. For the reasons stated above, the Court will grant Travis County's motion for summary judgment on the declaratory relief claim, and deny Bruner's cross-motion on the point.
Specifically, Plaintiff requests a declaration that Travis County (as well as the other Defendants) took Plaintiff's property in violation of Article I, Section 17 of the Texas Constitution, and seized his property in violation of the Fourth Amendment, and Article I, Section 9 of the Texas Constitution.
In summary, the Court will GRANT Travis County and Parsons' motion for summary judgment and DENY Bruner's cross-motion for summary judgment as to Travis County.
B. City of Austin.
Bruner's claims against the City are identical to those made against Travis County (summarized in section IV. A, above). The City moves for summary judgment on several grounds. As to the federal Constitutional claims, its sole ground for dismissal is its contention that the actions complained of by Bruner were not taken pursuant to a custom, practice or policy of the City, and thus under Monell the City is entitled to dismissal. With regard to the Texas law search and seizure claim, the City contends the claim must be dismissed because there is no state constitutional tort under Texas law. On the Texas takings claim, the City seeks dismissal because Article I, Section 17 of the Texas Constitution does not apply to personality, because the tiger was not taken for a "public use," and because the regulation of dangerous animals was a legitimate exercise of the City's police powers. Finally, the City requests the dismissal of the TUDJA claim because it is superfluous, and the substantive issues it raises ate already pending before the Court.
As with his suit against the County, in addition to suing the City of Austin, Bruner has also named as Defendants City employees Tomas Martinez and Joseph C. Seely in their official capacities. For the same reasons as stated earlier with regard to the County, see supra n. 2, the claims against the individuals are in fact claims against the City, and accordingly the Court will refer to all three of these Defendants as "the City."
In response, Bruner filed a cross-motion against the City, requesting summary judgment in his favor on his § 1983 claims under the Fifth Amendment (for a taking without just compensation) and the Fourth Amendment (for an unreasonable search and seizure), as well as on his takings claim under the Texas Constitution. In addition to the arguments discussed above, the City responds to Bruner's cross-motion by contending that Bruner had no protectible property interest in the tiger, which the City claims defeats Bruner's federal and Texas law takings claims. The Court will deal with the arguments of both the motion and cross-motion simultaneously.
Bruner's cross-motion also claimed at the outset that he was seeking summary judgment on his "Fourteenth Amendment due process violation claim" (Clerk's Doc. No. 41 at ¶ 1.02), only to state at the end of the motion that because the City did not address this claim in its motion, he "will reserve argument for trial on this point." Id. at ¶ 5.1. Accordingly, the Court will not address in this opinion the Fourteenth Amendment claim, if there is one. It is far from clear to the Court that the Plaintiff's pleadings even include a Fourteenth Amendment due process claim. Admittedly, in ¶ 3.20 of his Third Amended Petition (Clerk's Doc. No. 24), Plaintiff refers to the lack of hearings either prior to or after the alleged deprivation of his tiger. (Notably, given that this is a federal proceeding, and that the Third Amended Petition was filed after removal, the document should have been entitled a "complaint" as called for by FED. R. CIV. P. 7(a).) The reference in ¶ 3.20 to pre- and post-deprivation hearings, however, is contained in the section of the pleading titled "Facts," while the section of the pleading setting out causes of action conspicuously lacks any claim titled "Taking of Property Without Due Process, "although it does contain a claim titled "Taking of Property Without Just Compensation," see Third Amended Petition at ¶ 4.1. Given the state of the Third Amended Petition, it is not surprising that the City did not raise any argument regarding a Fourteenth Amendment claim. Regardless, because the Court need not determine whether such a claim is raised in the Third Amended Petition to decide any of the motions presently before the Court, the Court will not reach the issue at this time.
1. Federal Claims.
a. Fifth Amendment Claim.
The City contends that the federal takings claim (as well as all of the other federal claims) should be dismissed under Monell, because the City employees' actions in this case were not taken pursuant to an official City custom, practice, or policy. As noted with regard to the County's motion, to establish liability under § 1983, the Plaintiff must prove the existence of: (1) a policymaker (2) an official policy; and (3) a violation of constitutional rights whose "moving force" is the policy or custom. Monell, 436 U.S. at 694.
Because of the facts of this case, it is easiest to discuss these elements by starting with the question of whether an official policy was followed. There can be little question on that point. As the Fifth Circuit noted in a recent case, "municipal liability for section 1983 violations results if a deprivation of constitutional rights was inflicted pursuant to official custom or policy. Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations." Piotrowski v. City of Houston, ___ F.3d ___, 2001 WL 6712 at *7 (Jan. 17, 2001) (emphasis added). All of the actions at issue in this case were taken by City of Austin employees in furtherance of implementing the City's ordinance on dangerous animals. It is black letter § 1983 law that an ordinance states the official policy of a municipality. The summary judgment evidence further demonstrates that the City's actions in entering the Plaintiff's home and physically removing the tiger from his backyard were taken pursuant to that official City policy.
With regard to whether Plaintiff has identified "policymakers," once again the summary judgment evidence does not support the City's Monell defense. The identification of policymaking officials is a question of law, and must be determined by looking at the governing state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988). The authority to make municipal policy is the authority to make final policy without constraints on the official's discretionary decisions. Id. The City asserted at the hearing that while the ordinance may state City policy at a general or "macro" level, the specific actions taken by City employees to carry out the directives of the ordinance were not taken pursuant to any official policy. There is, however, ample evidence in the summary judgment record that the Assistant City Manager was informed by the Director of the City of Austin Health Department of the Department's intention to seize the tiger and the specific course of action he intended to take to effectuate the seizure. Indeed, the Director of the Health Department specifically expressed his displeasure at having to go through with a seizure as the City's lawyers counseled, rather than first going to court. The Court can envision few situations where the specificity of a course of planned municipal action has been more clearly displayed, and approved, by policymaking officials. The summary judgment evidence supports the Plaintiff's argument that the actions taken by the City employees here were specifically approved in advance by a "policymaker" as that term is understood in Monell and its progeny, given that the Assistant City Manager ultimately approved the actions proposed by the Director of the Health Department.
See Plaintiff's Response to Defendant City of Austin's Motion for Summary Judgment (Clerk's Doc. No. 41), Ex. F-28.
See Plaintiff's Response to Defendant Humane Society's Motion for Summary Judgment (Clerk's Doc. No. 39), Ex. F-28. This document appears to be a draft of the document referred to in note 8.
The only remaining question is thus whether the policy was the "moving force" of the allegedly unconstitutional actions of City employees in entering the Plaintiff's home, and taking his tiger. Again, there can be little debate on this point given the summary judgment evidence. All of the testimony indicates that the City employees took their actions to implement the dangerous animal ordinance, and the directives of high level City officials to implement that ordinance as it applied to the Plaintiff. The fact that the City had not previously taken steps to implement the ordinance is not determinative of this question. In appropriate circumstances, a single incident of conduct in furtherance of an official policy will result in liability under § 1983. Tuttle, 471 U.S. at 822 (once a municipal policy is established, it requires only one application to satisfy Monell's requirements). Unlike the cases cited earlier with regard to the County ( Bryan County v. Brown, Webster v. City of Houston, and Bennett v. City of Slidell), this is not the sort of case in which a rogue officer acted in an isolated instance. Rather, in this case the City passed an ordinance stating its overall policy, then thought and planned very carefully about how to implement it in this instance. It even received a specific list of the "cons" involved in moving forward with the plan from one of its executives (the Director of the City Health Department), and yet moved forward anyway.
For all of these reasons, the Court concludes that Monell does not provide the City with a defense from the Plaintiff's Fifth Amendment claim. Because this was the sole basis on which the City moved for summary judgment on this claims, the Court will deny the City's motion for summary judgment on the Fifth Amendment claim.
In his cross-motion, Bruner requests summary judgment on the substance of his federal takings claim. On the substance of that claim, however, there remain fact issues for trial, and the Court will therefore deny Bruner's cross-motion. Having said this, the Court will address the City's argument (raised in its response to Bruner's cross-motion) that the takings claim is infirm because Bruner had no protectible property interest in the tiger, because that issue will have to be addressed at some point prior to trial anyway. In this argument, the City contends that Bruner does not have a property interest in the tiger because the ownership of wild animals is so heavily regulated in the State of Texas that Bruner does not have enough of an interest in the tiger to merit constitutional protection. Whether or not a property interest exists for purposes of the Fifth Amendment depends upon what interests are recognized under state law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). The City relies on Texas v. Bartee, 894 S.W.2d 34 (Tex.App.-San Antonio, 1995, no writ), for its contention that Bruner's interests in the tiger do not rise to a protectible level. However, Bartee provides that "[u]nqualified property rights in wild animals can arise when they are legally removed from their natural liberty and made the subjects of man's dominion." Bartee, 894 S.W.2d at 41. Clearly (and sadly, some might say), Bruner had "removed" his Bengal tiger "from [its] natural liberty" and made it a subject of his "dominion" when he caged it in his backyard. This is not the sort of case in which a rancher is claiming that the deer that migrate through his land are "his." Here, we are dealing with a caged Bengal tiger in a backyard.
Nor — based on the summary judgment evidence — is this a case in which the subject party's ownership of the wild animal was illegal. The First Circuit has held that a person does not have a property interest in an animal that it is illegal to possess. Bilida v. McCleod, 211 F.3d 166 (1St Cir. 2000). Because Rhode bland law made possession of wild game illegal without a state permit, and because the plaintiff did not have a permit, the First Circuit concluded that the plaintiff there did not have a property interest in a raccoon the plaintiff had kept as a family pet for seven years. Texas law takes a similar approach. See TEX. PARKS WILDLIFE CODE § 1.011; § 43.002. Significantly, the plaintiff in Bilida did not have a permit the State of Rhode Island required. Indeed, the Court noted that it would have made a difference in the outcome of the case if she had. Bruner has asserted, and the City has not controverted, that Bruner had all applicable state and federal permits to possess the tiger at the time it was seized. It is also undisputed that Bruner owned the tiger and kept her in a steel enclosure approved by the United States Department of Agriculture and held a commercial exhibitor's license. From all of these undisputed facts, it is apparent that Bruner's ownership of the tiger was not illegal, and that he had a protectible property interest in the tiger at the time the City seized it from him.
See Plaintiff's Response to the City of Austin's Motion for Summary Judgment, Ex. A.
b. Fourth Amendment Claim.
The City contends that even if the City employees were acting pursuant to official policy in seizing the tiger, they surely were not following City policy if they are found to have obtained an invalid search warrant, and accordingly Monell protects the City from liability for the Fourth Amendment claim. In effect, this argument is a claim that the third element of the Monell factors — the causation or "moving force" element — is missing. That is, the City contends that the ordinance and actions of policymaking officials to implement it were not the moving force behind the officers obtaining an invalid warrant. This argument, however, ignores the summary judgment evidence. Bruner's claim is that the search was illegal because the warrant at issue was directed to non-peace officers ( i.e., Animal Control Officers). Given that the Director of the City Health Department specifically stated that the seizure "plan" called for Animal Health Officers to obtain a seizure warrant, and given that this plan was approved by the Assistant City Manager, the City's argument on this point fails.
See Plaintiff's Response to Defendant City of Austin's Motion for Summary Judgment, Ex. F-28 at p. 2.
In this claim, Bruner contends that the City violated his rights under the Fourth Amendment by seizing the tiger with a warrant that was invalid on its face because it was issued to and executed by an unauthorized person. The City's only argument for dismissal of this claim is the Monell defense rejected above. Thus, the only remaining question is whether Bruner's cross-motion for judgment in his favor on the claim should be granted.
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. In applying the Fourth Amendment, the Supreme Court has stated:
[O]ne governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.GM Leasing Corp. v. United States, 429 U.S. 338, 352-53 (1977), (citing Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967)). Bruner contends that the search of his home and seizure of his tiger was "unreasonable" under the Fourth Amendment because he did not give his consent, and because the warrant used to enter his home was not valid. Bruner's Fourth Amendment claim thus turns on the question of whether the warrant used to enter his home was a "valid" warrant.
Because the warrant at issue in this case was signed by a Texas judge (a Municipal Court Judge of the City of Austin), the Court will look to Texas law to determine whether the warrant was valid. United States v. Conine, 33 F.3d 467, 469 (5th Cir. 1994). At the time of the search, Texas law provided (and provides today) that a search warrant must be "issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate." TEX. CODE CRIM. P. § 18.01. The warrant at issue here was directed to "any Animal Control Officer of the City of Austin," and authorized such officers to search the Plaintiff's home "for violations of Section 3-1-3 of the Code of the City of Austin," and "for the seizure of one female Bengal tiger." There is no dispute that at the time of the search animal control officers were not peace officers under Texas law. TEX. CODE CRIM. P. § 2.12. Thus, the warrant was not "directed to a peace officer," as required by TEX. CODE CRIM. P. § 18.01, and was invalid. Flanary v. State, 117 S.W.2d 71 (Tex.Crim.App. 1938) (finding invalid a warrant directed to Liquor Control Board agents, who are not peace officers under Texas law). See also DeMoss v. State, 12 S.W.3d 553 (Tex.App.-San Antonio 1999, pet. denied) (declining to suppress when warrant was executed by an off-duty police officer, because, while he was off-duty; he was still a peace officer, as required). And while the summary judgment evidence establishes conclusively that City of Austin police officers were present during the search and seizure, the warrant was not "directed to" them.
Further, the record reflects that none of the animal control officers who were involved in the search and seizure were, independently of their animal control positions, licensed peace officers. See Plaintiff's Response to City of Austin's Motion for Summary Judgment (Clerk's Doc. No. 41), Exs. F (as supplemented) I.
On its face, the warrant used to enter Bruner's home was therefore invalid. The City presents no argument that any exception to the warrant requirement of the Fourth Amendment applies to this case (nor is any exception obviously applicable). There being no valid warrant, and no consent, the entry into and search of Bruner's home, and the ensuing seizure of his property, occurred in violation of the Fourth Amendment. Accordingly, the Court finds that Bruner's cross-motion for summary judgment on his Fourth Amendment claim should be granted. Bruner only moved for judgment as to liability, and submitted no evidence as to damages. Those issues will therefore be submitted to the jury to resolve.
c. Substantive due process claim.
Neither party submitted a motion for summary judgment with regard to the merits of Bruner's substantive due process claim (although the City sought dismissal of the claim under Monell, that issue has been rejected above). The Court, on its own motion, will dismiss that claim, however, because the Fourth and Fifth Amendments provide an adequate source of constitutional protection in this case, and the substantive due process claim is superfluous. See Graham v. Connor, 490 U.S. 386, 395 (1989); Conn v. Gabbert, 526 U.S. 286, 293 (1999); Boroff v. Van Wert City Board of Educ., 220 F.3d 465, 471 (7th Cir. 2000) (holding that substantive due process should not be used as a fallback argument when the First Amendment directly addresses the subject). See also Canady v. Bossier Parish School Board, 2001 WL 58722 (5th Cir. Jan, 23, 2001).
2. State Law Claims.
Bruner's Third Amended Petition states three claims against the City under Texas law. First, he claims that the City violated his rights under Article I, Section 9 of the Texas Constitution in its search of his home. Second, he asserts that the City took his property without compensation, in violation of Article I, Section 17 of the Texas Constitution. Lastly, he requests a declaratory judgment that the City took Plaintiff's property in violation of Article J, Section 17 of the Texas Constitution, and seized his property in violation Article I, Section 9 of the Texas Constitution.
On the first claim, the City urges that because there is no private right of action under the Texas Constitution, the claim must be dismissed. On the Texas takings claim, the City seeks dismissal because Article I, Section 17 of the Texas Constitution does not apply to personality, because the tiger was not taken for a "public use," and because the regulation of dangerous animals was a legitimate exercise of the City's police powers. Finally, on the claim for declaratory relief, the City seeks dismissal because it is duplicative of the claims already on file, and that there is no independent controversy supporting such relief.
a. Article I, Section 9 of the Texas Constitution.
This claim must be dismissed, because the Texas Constitution does not provide for a private right of action for damages, and there is no Texas statute analogous to 42 U.S.C. § 1983 creating a Texas "constitutional tort." Accordingly, for the reasons already set out in Section IV. A. 2 above, the Court will grant the City's motion for summary judgment as to this claim, and deny Bruner's cross-motion on this issue.
b. State Law Takings Claim.
On the other hand, unlike all other claims under the Texas Constitution, takings claims under Article I, Section 17 of the Texas Constitution are cognizable because "[t]he [Texas] Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging, or destruction of property for public use." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). The City moves for summary judgment on this claim, contending that the right to compensation applies only to the taking of real property and does not entitle Bruner to compensation for the loss of his tiger, because it was personality. The term "property" as used in the Texas Constitution relates to every species of property; including personality. Renault, Inc. v. City of Houston, 415 S.W.2d 948 (Tex.Civ.App.-Waco) rev'd on other grounds, 431 S.W.2d 322 (Tex. 1968) (citing Gulf C S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885)). The City maintains that Renault is the only Texas case to ever hold that Article I, Section 17 applies to personality, and Renault was reversed by the Texas Supreme Court. In fact, Renault case was reversed on other grounds, and the holding applicable to this case is still viable. Indeed, Renault was cited again on this point by the Texas Supreme Court in Cameron v. Cameron, 641 S.W.2d 210, 219-220 (Tex. 1982) ("the term 'property' includes every species of property"). Accordingly, the Court rejects the City's claim that the Texas takings clause does not apply to personality.
Although the City did not move for summary judgment on the federal takings claim on this basis, the Fifth Amendment also applies to personality. Lynch v. United States, 292 U.S. 571 (1934).
The City also seeks dismissal of the Article I, Section 17 claim because it contends that the tiger was not taken for "public use." This claim falls flat, however, as the summary judgment evidence establishes that the sole asserted purpose for the City's insistence on removing the tiger was to protect public safety. This is clearly a public purpose, and satisfies the "public use" requirement for a taking.
The City's final argument is that it clearly had the authority to regulate the possession of dangerous animals within its boundaries, and thus it cannot be held liable for a taking. See, e.g., City of Richardson v. Dog Owners, 794 S.W.2d 17 (Tex. 1990). The City's ability to regulate dangerous animals, however, is not in dispute. The Plaintiff's Third Amended Petition does not assert a claim that the City's ordinance, standing alone, effectuated a taking of his property. Rather, he asserts that the City's actions in entering his yard, breaking the lock on his tiger cage, and physically removing his tiger from his possession is what effectuated a taking. Thus, whether or not the City had the power to enact Section 3-1-3 of the City Code is not at issue. The case cited by the City, Corsicana v. Wilson, 249 S.W.2d 290 (Tex.Civ.App.-Waco 1952, writ ref'd n.r.e.), involved a suit by a property owner who had historically kept 25 to 75 head of cattle, horses, sheep, and hogs on his property, and who was seeking to invalidate a city ordinance that banned all livestock within the city's limits. The Court there held that because the ordinance was a valid exercise of the City's authority to protect public health, the ordinance did not violate the plaintiff's due process rights. If Bruner were contending that § 3-1-3 of the City Code was unconstitutional, then the argument by the City would be valid. But that is not his complaint. Rather, Bruner complains about the fact that the City entered his property, took his tiger and in the process, caused the tiger to die. Wilson is therefore inapposite. Indeed, had the City of Corsicana entered Wilson's property, gathered up his livestock, and, in the process of moving it, caused it to die, the analysis of that case would have been entirely different. Thus, the fact that the City had the general power to enact the ordinance at issue here is not a defense to Bruner's takings claim.
For all of these reasons, the Court will deny the City's motion for summary judgment motion as to the Texas takings claim. As stated previously with regard to the federal takings claim, there remain fact issues for trial on the takings claims, and accordingly, the Court will also deny Bruner's cross-motion for summary judgment on the Texas takings claim.
c. Uniform Declaratory Judgments Act.
As the Court has noted in Section IV. A. 2 (which discussion is incorporated here) Bruner's declaratory judgment claims against the City simply restate his substantive claims, in essence requesting declarations that his Fourth and Fifth Amendment and Texas constitutional takings claims are valid. Because the parties have no ongoing relationship, contractual or otherwise, and because there will be no additional relief provided by such declarations beyond that which will flow from the outcome of the substantive causes of action, the Court will grant the City's motion for summary judgment on the declaratory judgment claim.
V. SUMMARY OF RULINGS
In summary, because the claims against the Humane Society have been settled, the Court is denying the motions for summary judgment regarding those claims as moot. The Court is granting Travis County's motion for summary judgment and denying Plaintiff's cross-motion for summary judgment as to the County, and the County is dismissed from this lawsuit in full. The sole remaining Defendant will be the City of Austin. The Court is dismissing the declaratory judgment, substantive due process, Texas search and seizure claims, and retaining the Fourth Amendment claim, and the claim that the City caused an uncompensated taking under both the U.S. and Texas constitutions. Further, the Court is granting Plaintiff summary judgment as to liability only on the Fourth Amendment claim. Thus, the issues remaining for trial will be whether the City caused an uncompensated taking of the Plaintiff's property under either the U.S. or Texas constitutions, and if so, the damages therefore, and what, if any damages Plaintiff suffered as a result of the Fourth Amendment violation.
VI. ORDERING LANGUAGE
It is therefore ORDERED that Defendants Travis County and Michael Parsons' Motion for Summary Judgment (Clerk's Doc. No. 34) is GRANTED; Plaintiff's Response and Cross-Motion for Summary Judgment (Clerk's Doc. No. 40) is DENIED; Defendant Austin-Travis County Humane Society's Motion for Summary Judgment (Clerk's Doc. No. 35) and Plaintiff's Response and Motion for Declaratory Judgment (Clerk's Docket No. 39) are DENIED AS MOOT; Defendants The City of Austin, Tomas Martinez and Joseph Seely's Motion to Dismiss for Failure to State a Claim, or in the Alternative Motion for Summary Judgment (Clerk's Doc. No. 33) is GRANTED IN PART and DENIED IN PART; Plaintiff's Response and Cross-Motion for Partial Summary Judgment (Clerk's Doc. No. 41) is GRANTED IN PART and DENIED IN PART.