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Duprey-Bennett v. Spokane County

United States District Court, E.D. Washington

March 27, 2015

MICHELLE R. DUPREY-BENNETT, a single person, Plaintiff,


THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendants' Motion to Dismiss (ECF No. 4). This matter was submitted for consideration without oral argument. The Court has reviewed the briefing and the record and files herein, and is fully informed.


This is a case involving the impoundment and euthanasia of a dog. Plaintiff Michelle R. Duprey-Bennett asserts, inter alia, claims for procedural due process in violation of 42 U.S.C § 1983, emotional distress, conversion, and negligent misrepresentation. ECF No. 1-1 at 6-7. Defendants have jointly filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), seeking to dismiss Plaintiff's Complaint with prejudice.[1] ECF No. 4.


On November 11, 2012, Spokane County Regional Animal Protection Service ("SCRAPS") Officer R. Faylor responded to a report of an injured dog. Officer Faylor located the dog, a German Shepherd, and was provided the address of the dog's owner by the reporting party. Officer Faylor evaluated the dog for injury and concluded that, although the dog did not appear to be in distress, he was "a bit wobbly." Officer Faylor proceeded to knock on the door of the residence but received no response. Officer Faylor also called the phone number, as listed in SCRAPS' records associated with the address, but received no answer.

Officer Faylor left a notice of violation at the residence, indicating that SCRAPS would hold the dog for a period of five days, and impounded the dog at SCRAPS' shelter. Pursuant to Spokane County Code 5.04.060(1), SCRAPS may impound a dog in violation of any provision of the Code, including if the dog is running "at-large, "[3] id. at 5.04.070(1), or found to be sick or injured. If the dog is licensed, SCRAPS will keep the dog at the shelter for at least 5 days. Id. at 5.04.060(2). If the dog is unlicensed, SCRAPS provides notice that it will hold the dog for 3 days. Id. An owner or keeper may then redeem his or her dog upon payment of all redemption fees and, if applicable, upon licensing the dog. Id. at 5.04.060(5). Plaintiff's Complaint does not allege that her dog was licensed.

Two days later, on November 13, 2012, Plaintiff called SCRAPS several times and travelled to the shelter to inquire about her dog. Plaintiff did not redeem her dog at this time.

By November 14, 2012, the dog suffered a broken tail from an altercation with the dog in the next cage and was otherwise in poor condition. SCRAPS telephoned Plaintiff and left a message when there was no answer. SCRAPS brought the dog to a veterinary office for evaluation. According to the "Injured Animal Form, " the veterinarian noted the dog had degenerative myelopathy, pressure sores, urine scald, a left swollen leg, and a broken tail. ECF No. 5-3 at 2. The veterinarian further opined that the dog's condition required "extreme care, " which would be "extremely difficult in kennel setting." Id. As such, the veterinarian recommended euthanasia "ASAP" as the most humane option. Id. Without first allowing Plaintiff a meaningful opportunity to respond to SCRAPS' previous telephone message, SCRAPS Director Nancy Hill approved euthanasia of the dog.

Plaintiff returned SCRAPS' call one hour after it had first left her a message and was informed that her dog had been euthanized. Notwithstanding the applicable holding period, "any unlicensed impounded dog [may] be humanely euthanized if the director determines the animal to be... suffering from serious injury or disease." Spokane County Code 5.04.060(4). Otherwise, the dog may be adopted or humanely euthanized if, after expiration of the relevant holding period, the dog has not been redeemed. Id. at 5.04.060(3). Notwithstanding the licensing requirement, SCRAPS was on notice that Plaintiff was the owner, as indicated by all previous contact.

Plaintiff filed suit against Defendants on October 17, 2014, in Spokane County Superior Court, which action was removed to this Court on December 11, 2014. ECF Nos. 1, 1-1. In her suit, Plaintiff is suing SCRAPS Directors Nancy Hill and Officer Faylor, as well as Spokane County and SCRAPS under the theory of respondeat superior, for the above events.


A. Standard of Review

"After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). In reviewing a 12(c) motion, the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the nonmoving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). "A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." Marshall Naify Revocable Trust v. United States, 672 F.3d 620, 623 (9th Cir. 2012) (quoting Fajardo v. Cnty. of L.A., 179 F.3d 698, 699 (9th Cir.1999)). "Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted).

A Rule 12(b)(6) motion tests the legal sufficiency of the plaintiff's claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To withstand dismissal, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Naked assertion[s], " "labels and conclusions, " or "formulaic recitation[s] of the elements of a cause of action will not do." Id. at 555, 557. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a plaintiff need not establish a probability of success on the merits, he or she must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id.

A complaint must also contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This standard "does not require detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In assessing whether Rule 8(a)(2) has been satisfied, a court must first identify the elements of the plaintiff's claim(s) and then determine whether those elements could be proven on the facts pled. See id. at 675. The court should generally draw all reasonable inferences in the plaintiff's favor, see Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1051 (9th Cir. 2012), but it need not accept "naked assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). Generally, in ruling upon a motion to dismiss, a court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the party opposing the motion. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

B. SCRAPS' Capacity to be Sued

As an initial matter, Defendants move to dismiss SCRAPS as a Defendant, asserting that it is not a legal entity subject to suit. ECF No. 4 at 5-6.

To determine if a governmental body was intended to be a separate legal entity with the capacity to sue or be sued, courts look to the enactment providing for its establishment. Foothills Dev. Co. v. Clark Cnty. Bd. of Cnty. Comm'rs, 46 Wash.App. 369, 376-77 (1986) (citing Roth v. Drainage Improvement Dist. No. 5, 64 Wash.2d 586, 588 (1964)). If the enacting provision did not create a separate legal entity with capacity, then the legal action is more properly brought against the greater entity of which the governmental body is a part. See, e.g., Roth, 64 Wash.2d at 588) (holding that the drainage improvement district, organized by Clark County, did not have the capacity to sue or be sued apart from the County). Nolan v. Snohomish Cnty., 59 Wash.App. 876, 883, 802 P.2d 792 (1990) (holding Snohomish County Council is not a legal entity separate and apart from the county itself; thus jurisdiction over the Council was achieved by suing the County itself); Foothills Dev. Co., 46 Wash.App. at 376-77 (holding the Clark County Board of County Commissioners is not a separate entity that has capacity to be sued; rather, the County was the proper defendant); see also Worthington v. Westnet, 341 P.3d 995, 1002 (2015) (Yu, J., dissenting) (discussing relevant Washington precedent applying Roth's enabling-statute analysis).

The Revised Code of Washington and Spokane County Code help guide the Court's analysis here. RCW 36.01.010 expressly provided Washington counties the capacity to sue and be sued: "The several counties in this state shall have capacity as bodies corporate, to sue and be sued in the manner prescribed by law." Specific to animal control, Washington county and city animal control agencies are authorized to "enforce city or county municipal ordinances regulating the care, control, licensing, or treatment of animals within the city or county." RCW 16.52.011(2)(c). In so enforcing, the county or city may administer the relevant animal control laws itself or "grant exclusive authority to exercise the privileges and authority granted by this section to one or more qualified corporations." Id. Rather than contracting away animal enforcement to a corporation, Spokane County's Board of County Commissioners established by resolution the Spokane County Animal Protection Service, also known as SCRAPS, to enforce the relevant provisions of the Code and RCW on behalf of the county. Spokane County Code 5.04.020(4). It necessarily follows that SCRAPS is not a separate legal entity, apart from the County, but rather was created by Spokane County for the purpose of enforcing its animal control measures. Further, no provision in the RCW or County Code contemplates SCRAPS' capacity to sue or be sued, separate from the County. Accordingly, because SCRAPS is not a legal entity, the County is the proper Defendant in this action and SCRAPS is appropriately dismissed.

B. Section 1983 Claim

Pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendants Nancy Hill and Office Faylor unlawfully deprived Plaintiff of her property without due process.[4] A cause of action pursuant to section 1983 may be maintained "against any person acting under color of law who deprives another of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). The rights guaranteed by section 1983 are "liberally and ...

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