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Deeter-Larsen v. Whatcom Humane Society

United States District Court, W.D. Washington, Seattle

June 19, 2019

KELLIE DEETER-LARSEN, et al., Plaintiffs,
v.
WHATCOM HUMANE SOCIETY, et al., Defendants.

          ORDER

          The Honorable Richard A. Jones United States District Judge.

         This 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.

         I. BACKGROUND

         Plaintiffs 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.

         In 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.[1] 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. Id.

         On 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 12.

         On 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.

         Dr. 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.

         On 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.

         Plaintiffs 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.

         On 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.

         II. DISCUSSION

         A. Previous Defendants' Motion to Strike (Dkt. # 93)

         As an 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.

         The 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 liability ...


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