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Shell v. Ferry County

United States District Court, E.D. Washington

April 28, 2017

JESSICA SHELL and PHILIP SHELL, and the marital community comprised thereof, Plaintiffs,


          Stanley A. Bastian United States District Judge.

         Before the Court is the Ferry County Defendants' Motion for Summary Judgment, ECF No. 24. The motion was heard without oral argument. Plaintiffs are represented by Douglas Phelps. Defendants are represented by Brian Christensen.

         Motion Standard

         Summary judgment is appropriate 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 and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party has the initial burden of showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, the non-moving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Id. at 325; Anderson, 477 U.S. at 248.

         In addition to showing there are no questions of material fact, the moving party must also show it is entitled to judgment as a matter of law. Smith v. University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled to judgment as a matter of law when the non-moving party fails to make a sufficient showing on an essential element of a claim on which the non-moving party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party cannot rely on conclusory allegations alone to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993).

         When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

         Background Facts

         Ferry County Sheriff Dispatch received a letter, dated January 19, 2013, from Forget Me Not Animal Shelter regarding an emaciated and wounded dog. The letter, written by Kim Gillen, the Executive Director of the Shelter, details the receipt of a Pitbull on January 17, 2013 that was extremely thin and with possible frostbite and includes the conclusion by two vets that the dog had not been lost for a long time, but was instead receiving inadequate food and medical care at his home. The letter goes on to explain that on January 18, 2013, the Shelter received an anonymous message that said the dog's name was Brewster, that he was owned by Phil “Steel” and Jessica “Shaw, ” who have been breeding and attempting to sell Pitbulls, and there may be 14 or more dogs and puppies in similar condition. The person also expressed concern about some small children that are living at the residence in possibly unfit conditions.

         Ms. Gillen provided an address that she thought was the Shell's based on a previous Shelter interaction with Ms. Shell, as well as Ms. Shell's phone number. The Shelter requested the Sheriff's Department conduct a welfare check on the pets at the residence and also indicated that based on the condition of the Pitbull currently at the Shelter, Ms. Gillen was in favor of cruelty charges being brought against the owners.

         The Initial Search

         A few days later, on January 24, 2013 around 8:30 a.m., Deputy Talon Venturo and another agent[1] conducted the requested welfare check. Plaintiffs' residence is located at 95 Goodrich Road, or Forest Service Road 2149. While attempting to drive to the residence they were unable to drive any further than the intersection of the North Fork Trout Cr and Forest Service Road 2149. North Fork Trout Cr was plowed to the Empire Snow Park, so the officers parked the patrol vehicle at the Snow Park and rode the Sheriff's Office snowmobiles to the residence. Specifically, they rode the snowmobiles about a mile up to the driveway, which was gated. They then walked down the driveway, which was approximately 250 yards to the two-story house.

         According to Ms. Shell, there are double gates at the driveway's intersection with Forest Service Road 2149, which were closed with a chain the day in question. In addition to the closed gate, there were numerous signs at the gate and in the surrounding area indicating no trespassing, no hunting, and no entry onto the property. The house is located in a very rural, thickly forested area and the house is not visible from Forest Service Road 2149.

         While walking down the driveway, Deputy Venturo saw four puppies running loose and an adult female dog on a run line. He observed rib lines on two of the puppies. He then walked to the residence and knocked on the door. An 8-year old boy answered the door followed by a 5-year old boy. The 5-year old boy yelled at them to leave. Deputy Venturo asked if their parents were home. The 5-year old said his parents went to Colville. The boys had shoulder-length hair that was matted. Both children were dirty and it appeared they had not been bathed in a while. Deputy Venturo saw dog feces on the concrete floor. When Deputy Venturo asked the children if they were going to school, the younger one told him he needed to leave.

         Deputy Venturo and the other agent then decided to leave the residence. While walking back, Deputy Venturo heard a puppy in the woodshed. He walked over to the woodshed and observed a small brown puppy on a chain with no food and water. They walked back to the snowmobiles and retuned back to the Snow Park.

         Deputy Venturo then contacted dispatch to contact Child Protective Service. He also contacted the county road department to get a grader to plow the road and requested that a representative from Forget Me Not Shelter come to the residence. The grader took about 1.5 hours to plow the Goodrich Road/Forest Service Road 2149.

         The Second Visit to the Shell Residence

         Deputy Venturo and the others present then drove up Forest Service Road 2149 and parked at the gate in front of Plaintiffs' residence. Deputy Venturo and the CPS workers walked down to the residence while Border Patrol agents assisted the animal shelter volunteers who were checking the dogs. Deputy Venturo and the CPS workers contacted the children at the house and asked them if they wanted to go into town and get some food. The children came outside. They were walked up the driveway and placed in the CPS vehicle. At some point, the Shells returned from their trip and were notified by CPS that CPS had a pick-up order for their youngest child. The youngest child was also taken into protective custody by CPS.

         Defendant Valerie MacIntyre

         Dependency proceedings were initiated by CPS. Defendant Valerie MacIntyre was appointed guardian ad liem for Plaintiffs' three minor children. Plaintiffs felt pressured with no way out and subsequently signed relinquishment papers. Throughout the dependency proceedings, Defendant MacIntyre made comments to Plaintiff Jessica Shell regarding her husband, including that she would never regain custody of her children if she stayed with her husband, that she should come live with Ms. MacIntyre in an apartment in Colville, and that she would never leave Ms. Shell alone.

         Conversation with Brad Miller

         Defendant Brad Miller is a Ferry County Commissioner. Early in January, 2013, Ms. Shell contacted him regarding the snow berms that the county groomer had been leaving both at the intersection of her driveway with Forest Service Road 2149 and at the intersection of Forest Service Road 2149 and North Fork Trout Creek Road. The berms were making the road nearly impassable. According to Plaintiffs, they had lived in the house for six years and they never had a problem until 2013 when the groomer started creating snow berms. In his declaration, Mr. Miller states that Ms. Shell asked him to have her road plowed. He says he explained to her that she lived on a federal forest service road that was not maintained in the winter and the county would not plow her road.

         October 28, 2014 Visit to the Shell Residence

         Sometime later, Jessica and Phillip Shell were charged with attempted murder that was downgraded to felony harassment.[2]

         Ms. Shell was arrested and detained on these charges, but an Order for Pretrial Release was entered on October 27, 2014 in Ferry County Superior Court. Ms. Shell executed a $30, 000 property bond and she agreed to the following conditions:

Defendant will surrender all her firearms to law enforcement - a deputy will escort her to her residence and take possession of the guns and shall be authorized to search for firearms to ensure total retrieval.

         The next day, Deputy D. Odegaard, Deputy Gordon Winters, and Corrections Officer Reese transported Ms. Shell to her residence. Her attorney, M. Von Sauer, also drove to the residence. While in route, Deputy Odegaard asked Ms. Shell how many guns were at her house. She stated 4 or 5 guns-a .22 caliber rifle, shot gun, handgun and one or two rifles in the storage unit.

         At the house, the deputies told her attorney that he was to stay inside the vehicle for his and the officer's safety. Mr. Von Sauer said he understood. Deputy Odegaard told Mr. Von Saur that if he needed the officers for something, he should honk his horn and Deputy Odegaard would come outside and meet with him.

         Deputy Winters began taking photographs of the area. Ms. Shell was brought inside the house and placed on the couch. She was still in handcuffs. Deputies found a handgun in a coat that was by the front door. It ...

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