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Barber v. Commonwealth of Pennsylvania Dep't Agriculture

May 3, 2010

ROLLIN MICHAEL BARBER, PAULA LAPPE-BARBER, RACHEL LAPPE-BILER, PAULINE GLADYS BRYNER-LAPPE AND FAITHFUL BUT FORGOTTEN FRIENDS ANIMAL RESCUE AND PLACEMENT SERVICES, INC. PLAINTIFFS,
v.
THE COMMONWEALTH OF PENNSYLVANIA DEPT. AGRICULTURE, BUREAU OF DOG LAW ENFORCEMENT, BRADLEY D. SHIELDS, BRUCE MINICK, REBECCA MCDONALD, PENNSYLVANIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, DREW DELENICK, RICKEE MILLER, HOWARD NELSON, JESSE L. SMITH AND JOHN DOES. DEFENDANTS.



The opinion of the court was delivered by: Ambrose, District Judge

OPINION and ORDER OF COURT

Plaintiffs Rollin Michael Barber, Paula Lappe-Barber, Rachel Lappe-Biler and Pauline Gladys Bryner-Lappe are owners and operators of a non-profit animal rescue and kennel - Faithful But Forgotten Friends Animal Placement Services, Inc. ("the Kennel" - also a named Plaintiff in this action). The Plaintiffs are engaged in the rescue of dogs and other animals in and throughout Fayette County, Pennsylvania. Rollin Michael Barber and Rachel Lappe-Biler are co-named as the rightful holders of the kennel license issued with respect to this property. According to the Complaint, the license authorized the Plaintiffs to house in excess of 500 dogs. The Complaint names as Defendants the Commonwealth of Pennsylvania Department of Agriculture, Bureau of Dog Law Enforcement, which is apparently responsible for conducting inspections of kennels licensed by the Commonwealth, as well as various of the Bureau's employees - Bradley Shields (a regional supervisor), Bruce Minick (a Dog Warden), Drew Delenick (kennel compliance specialist), Rickee Miller (acting director) and Jessee Smith (special deputy secretary). The Individual Commonwealth Defendants are named both in their official and individual capacities. (The aforementioned defendants are referred to collectively as "the Commonwealth Defendants."). The Plaintiffs also name as Defendants the Pennsylvania Society for the Prevention of Cruelty to Animals ("PSPCA"), Rebecca McDonald (a Humane Society officer) and Howard Nelson (the director of the PSPCA).

The current dispute stems from a series of inspections of the kennels which occurred throughout the 2007 calendar year.*fn1 Specifically, on March 19, 2007, the Kennel passed an inspection conducted by Dog Warden Thomas Wharry. Thereafter, on September 12, 2007, Delenick and Miller conducted an inspection.

Yet no kennel inspection report was issued. On October 17, 2007, Delenick and Shields conducted another inspection and again failed to serve an inspection report. During this inspection, however, Delenick also allegedly approached Rachel Lappe-Biler and informed her that, although charges against the Plaintiffs were warranted, he "could make all their troubles go away if she would agree to date him." See Complaint, ¶ 29.

On October 18, 2007, Defendant McDonald received a complaint from Miller regarding concerns about the Kennel. Miller, Delenick and Shields provided McDonald with information which she used in her Affidavit of Probable Cause submitted with an application for a search warrant. A search warrant was issued. Defendants Miller, Shields, Delenick ,McDonald and Minick conducted a raid, accompanied by members of the Pennsylvania State Police, on October 25, 2007.

Approximately 204 dogs were seized during the raid.*fn2 McDonald, Delenick, Shields and Miller threatened the Plaintiffs with arrest, immediate incarceration, criminal charges and fines if the Plaintiffs refused to surrender the dogs. Delenick again made inappropriate sexual advances toward Rachel Lappe-Biler, stating to her that "[y]ou know all of this can go away if you're willing to go out with me." See Complaint, ¶ 42. The Plaintiffs also allege that McDonald, accompanied by two other individuals, used excessive force and brutality while gaining entrance to Plaintiff Gladys Bryner-Lappe's residence. They allegedly threw her against the wall and pinned her there.

Several days after the execution of the warrant, Defendant Jesse L. Smith, Special Deputy Secretary for Dog Law Enforcement revoked the Kennel's license.

McDonald, Miller and Shields, together with two other Kennel Specialists, returned to the Plaintiffs' property on November 8, 2007. Though McDonald was denied access, the others conducted an inspection and reported their findings to McDonald. McDonald then applied for and received a second search warrant which was executed on November 9, 2007. The Defendants seized additional animals that day, including dogs, cats and goats. Plaintiffs represent that the animals were their personal property.

McDonald then issued 9 citations under 18 Pa. C.S.A. § 5511(c) -Pennsylvania's Cruelty to Animals statute. The citations were distributed evenly among Rollin Michael Barber, Paula Lappe-Barber and Rachel Lappe-Biler. Rollin Michael Barber entered a plea of no contest to one count and the charges against Paula Lappe-Barber and Rachel Lappe-Biler consequently were dismissed.

The Plaintiffs subsequently commenced this action. The Complaint sets forth the following causes of action. Count I - The Plaintiffs allege that the Defendants conspired in violation of 42 U.S.C. § 1985. Count II - the Plaintiffs contend that the PSPCA and the Bureau failed to take reasonable steps to protect them from the conspiratorial activity described in Count I, in violation of 42 U.S.C. § 1986. Count III - The Plaintiffs charge the PSPCA and the Bureau with having violated various of their constitutional rights in contravention of 42 U.S.C. § 1983. Count IV - The Plaintiffs seek to hold the Defendants liable for malicious prosecution under 42 U.S.C. § 1983. Count V - Plaintiff Pauline Gladys Bryner-Lappe seeks to recover under 42 U.S.C. § 1983 and the Fourth Amendment for what she describes as an assault and battery. Count VI - Plaintiff Rachel Lappe-Biler charges Defendant Delenick with having sexually harassed her in violation of 42 U.S.C. § 1983. Count VII - The Plaintiffs assert a claim for intentional infliction of emotional distress, purportedly under 42 U.S.C. § 1983. Count VIII - The Plaintiffs assert claims under the Fourth and Fifth Amendments based upon the unreasonable seizure of personal property and the seizure of such property without the award of just compensation.

The Commonwealth Defendants*fn3 have filed a Motion to Dismiss. See Docket No. [10].*fn4 They seek the dismissal of all claims asserted against the Bureau, as well as all "official capacity" claims asserted against the individual Defendants, pursuant to Federal Rule of Civil Procedure 12(b)(1) based upon 11th Amendment immunity. The Defendants challenge the viability of all other claims pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the reasons set forth below, the Motion is granted in part and denied in part.

Standard of Review

A. Rule 12(b)(1)

"A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Goodson v. Maggi, Civ. No. 8-44, 2009 WL 2960386 at * 4 (W.D. Pa. Sept. 14, 2009), citing, Patsakis v. Greek Orthodox Archdiocese of America, 339 F. Supp.2d 689, 692 (W.D. Pa. 2004) and Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In a facial attack, "the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss." Goodson, 2009 WL 2960386 at * 4, citing, Mortensen, 549 F.2d at 891 and In re Kaiser Group Int'l., Inc., 399 F.3d 558, 561 (3d Cir. 2005).

B. Rule 12(b)(6)

When deciding whether to grant or deny a 12(b)(6) motion the Supreme Court has held:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65,167 L.Ed.2d 929 (2007). (internal citations, footnotes and quotation marks omitted). See also, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff's factual allegations ...


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