United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on Defendants Amber Itle and
Washington State Department of Agriculture's
(collectively, “Defendants”) Motion for Summary
Judgment (Dkt. # 85), and Defendants Whatcom Humane Society,
Laura A. Clark, and Rebecca Crowley's (collectively,
“Previous Defendants”) Motion to Strike (Dkt. #
93). Plaintiffs oppose Defendants' Motion for Summary
Judgment, and Defendants have filed a Reply. Dkt. ## 89, 94.
For the reasons that follow, the Court
GRANTS both Motions.
operated a pig farm in Whatcom County. Dkt. # 41 at ¶
10. Plaintiffs housed a number of animals on their farm,
including multiple pigs, horses, and dogs. Id. at
¶¶ 11-13. Beginning in late 2015 and extending to
2016, Defendant Rebecca Crowley of the Whatcom Humane Society
made repeated visits to Plaintiffs' farm to investigate
the treatment of the animals. Id.
November 2015, Crowley requested field veterinary assistance
in observing pigs owned by Plaintiffs. Dkt. # 87 at ¶ 8.
However, Dr. Itle did not visit Plaintiffs' property nor
did she inspect the pigs in response to that request.
Id. On March 21, 2016, Defendant Crowley requested
again via email that Defendant Dr. Itle conduct a general
examination of 7 horses and 7 pigs owned by Plaintiffs.
Id. at ¶ 9, Ex. B. This email advised that Ms.
Crowley had just gotten a warrant to seize the animals. Dkt.
# 87 at ¶ 9, Ex. B. Dr. Itle responded, indicating she
was unavailable to examine the animals. Id. On March
25, 2016, Ms. Crowley again requested that Dr. Itle examine
the same horses and pigs. Dkt. # 87, Ex. C. On March 26,
2016, Plaintiffs' animals were seized from their property
by Whatcom County Humane Society. Dkt. # 86, ¶ 3; Ex. A
at 75:20-22. On the same day, Dr. Itle responded to Ms.
Crowley's e-mail of March 25, and advised that Dr. Itle
was willing to assess the animals and/or educate the owners
on proper swine care the following day. Dkt. # 87 at ¶
10, Ex. C. On March 27, 2016, Ms. Crowley limited her request
for field veterinary assistance to Plaintiffs' horses.
March 28, 2016, Dr. Itle conducted an assessment of the
horses at a boarding facility in Lynden, Washington, and
drafted a report of her findings. Dkt. # 87 at ¶ 11. In
the first draft of her report, Dr. Itle concluded that some
of the horses were in poor condition, and that though all of
the horses appeared to be stable at the time she examined
them, she found evidence of long-term neglect. Dr. Itle noted
that the horses had a good prognosis for recovery with proper
management of parasites, skin disease and nutritional
management. Id., Ex. D at 3. Dr. Itle's draft
also included two pictures of the pigs on the last page, with
the sole comment “Skinny pigs!” Id. at
April 2, 2016, Dr. Itle emailed Ms. Crowley the first draft
of her report. In her email, Dr. Itle requested feedback on
any changes or adjustments, and indicated that she had left
several places blank on the first page of the report, next to
the portions of the report that identified the case number
and the name of the owners. Dkt. # 87 at ¶ 12,
Ex. D. That same day, Ms. Crowley responded, suggesting
changes that included providing a case number, citation
number and name of the owners, as well as a specific address
as opposed to the general location identified in Dr.
Itle's first draft of her report. Id. at ¶
13, Ex. E. Ms. Crowley also noted that the horses came back
from another pasture in December. Id. Finally, Ms.
Crowley wrote to Dr. Itle “[c]hange whatever you want,
or leave it as is.” Id.
Itle revised the report to reflect the suggested changes, but
in reviewing the report, also revised two sentences that
read: “After a discussion with WHS officers a few
months ago, the horses were moved to a neighboring pasture
but recently returned to the owner's premise. This may
explain why the condition of many of the horses has improved
since that time.” Dkt. # 87, ¶ 14. Dr. Itle
revised those two sentences to read: “After a
discussion with WHS officers a few months ago, the horses
were moved to a neighboring pasture but returned to the
owner's premise in December.” Id., see
also Dkt. # 87, Ex. F at 3. Dr. Itle contends that she
revised these sentences because (1) the sentences were not
part of her first-hand assessment based on her own
observations, as she had not personally examined the horses
prior to March 28, 2016; (2) she believed that the sentences
were also inaccurate, given that she had concluded that the
horses had not properly been cared for and that she had found
evidence of long-term neglect toward the horses; and (3) she
believed that the sentences, as initially drafted, could have
also been read to improperly speculate that the horses had
improved since being moved off Plaintiffs' property.
See Dkt. # 87, ¶ 15, Ex. D. Finally, Dr. Itle
appeared to edit the previous draft report's brief
sentence on the pigs, noting that “although [she] did
not do thorough examinations on these pigs, many were in
extremely poor body condition score and also showed evidence
of neglect, ” and again included pictures of three of
the pigs in question. Dkt. # 87, Ex. F.
March 31, 2016, the Whatcom County Prosecuting Attorney's
Office charged Plaintiff Kellie Deeter-Larsen with 30 counts
of animal cruelty in relation to her treatment of the pigs.
Dkt. # 92-6; see also Dkt. # 41, ¶ 19. On April
7, 2016, Dr. Itle sent Ms. Crowley her final report via
email. Dkt. # 87 at ¶ 16, Ex. F. Of the charges levied
against Ms. Deeter-Larsen, 29 were dismissed in July 2016,
while Ms. Deeter-Larsen pled guilty to one count of second
degree animal cruelty. Dkt. # 86, Ex. B. Ms.
Deeter-Larsen's guilty plea was vacated on or about March
1, 2018. Dkt. # 92-4 at 60-62.
allege that during the time period of the seizure and prior
visits, Whatcom Humane Society employees acted without
limited commissions from Whatcom County Sherriff's Office
and without authorization from Whatcom County Superior Court
to act as animal control officers pursuant to the
requirements of RCW 16.52. Dkt. # 41 at ¶¶ 21-24.
Dr. Itle contends that at all times related to her
involvement in this matter she believed that Whatcom County
Humane Society was validly acting as law enforcement,
executing warrants and investigating animal cruelty criminal
matters pursuant to a valid commission by Whatcom County.
Dkt. # 87, ¶ 21. Accordingly, she did not communicate
with the Whatcom County Sheriff's Office or the Whatcom
County Prosecutor's Office related to her observations of
Plaintiffs' animals. Id. at ¶ 22.
February 27, 2018, Plaintiffs filed this lawsuit against
Defendants Whatcom Humane Society, Laura A. Clark, Whatcom
County, Rebecca Crowley, Washington State Department of
Agriculture, and Amber Itle. Dkt. # 1. Most of these
Defendants have reached a resolution of this matter with
Plaintiffs. Dkt. # 82. Dr. Itle and WSDA are the only
remaining Defendants in this matter.
Previous Defendants' Motion to Strike (Dkt. #
initial matter, the Court considers a Motion to Strike filed
by previously dismissed Defendants Whatcom Humane Society,
Laura Clark, and Rebecca Crowley (“Previous
Defendants”). Dkt. # 93. The Previous Defendants move
to strike a portion of Plaintiffs' Response (Dkt. # 89);
specifically, page 6, lines 13-16, where Plaintiffs state
“[o]n February 22, 2019, a judgment was filed against
Whatcom Humane Society, Laura Clark, Whatcom County, and
Rebecca Crowley holding them liable for all civil rights
violations (Dkt. 83).” Id. The Previous
Defendants contend that this is factually and legally
incorrect because the making and acceptance of an offer for
judgment, and the entry of such judgment, does not equate to
a finding of liability. Id. at 2.
Court agrees with the Previous Defendants. First, Plaintiffs
have failed to respond to the Motion to Strike, which the
Court can interpret as an admission the Motion to Strike has
merit. W.D. Wash. Local Civil Rule 7(b)(2). Second, the Court
agrees that the Previous Defendants' Offer of Judgment,
and Plaintiffs' acceptance, do not constitute a finding
of liability. See, e.g., Chen v. Allstate Ins. Co.,
819 F.3d 1136, 1140-41 (9th Cir. 2016) (distinguishing
admissions of liability from Rule 68 offer of judgment);
Early v. Keystone Rest. Grp., LLC,
2:16-CV-00740-JAM-DB, 2019 WL 918211, at *2 (E.D. Cal. Feb.
25, 2019) (citing cases and holding that “a Rule 68
offer need not admit liability, so long as it is a valid
offer of judgment”). The Previous Defendants' Offer
of Judgment contained no language regarding any admission of