The opinion of the court was delivered by: William W. Caldwell United States District Judge
The plaintiffs, Harold Dice and Audrey Dice, husband and wife, owned a farmhouse and outbuildings in Bethel Township, Pennsylvania. In 2007, they lived at this property with their daughter, Dianne Dice, also a plaintiff. One of the outbuildings was a wooden shed where nineteen dogs were kept, adjacent to a newly dug burn pit Harold Dice was using to burn trees, brush and other flammable trash.
On June 14, 2007, there was an inspection at the property for potential violations of the Township code. Tension arose during the inspection between the code-enforcement officers and Dianne Dice. That evening a fire in the burn pit spread to the dog shed, killing eighteen of the dogs. The day after the dog-shed fire a local humane society agent told the local newspaper and other media that on the night of the fire he could smell an accelerant on the dogs. This assertion could not be confirmed by a later law-enforcement investigation. One week after the dog-shed fire, fire destroyed the farmhouse. A law-enforcement investigation into this fire could not rule out arson.
The plaintiffs filed this lawsuit against the following defendants: (1) Carl Johnson, the humane society agent, more specifically, a Lebanon County Humane Society animal investigator; (2) Brenda Marinkov, the Bethel Township code-enforcement officer and zoning officer, who conducted the inspection; (3) Jerry Fisch, a part-time code-enforcement officer for the City of Lebanon, Pennsylvania, who assisted Marinkov in the inspection; (4) Gregory Setzer, a police officer for the Lebanon County Humane Society, who issued citations for dog-law violations; and (5) Libby Williams, a New Jersey animal-rights activist who commented on the situation after reading news accounts on the web of the dog-shed fire.
The plaintiffs make the following federal civil-rights claims: (1) a First Amendment retaliation claim asserting that the inspection was in retaliation for the exercise of a constitutional right -- when Harold Dice had earlier told Johnson to stay off the property; (2) a Fourth Amendment claim asserting that the consent for the inspection was coerced, thereby rendering the inspection unconstitutional; (3) a First Amendment association claim; (4) a Fourth Amendment malicious prosecution claim for nineteen citations issued to each of the plaintiffs after the inspection for dog-law violations; (5) a Fourth Amendment excessive-force claim on behalf of Dianne Dice; and (6) a Fourteenth Amendment due process claim asserting the surviving dog was being kept from Dianne Dice. State law claims are also asserted for: (1) civil conspiracy; (2) assault by Marinkov; (3) malicious prosecution, and (4) defamation and false light, for the comments made by Johnson and Williams.
We are considering four motions for summary judgment filed by the defendants. Johnson and Setzer filed a combined motion, and the other three defendants filed separate ones.
Under Fed. R. Civ. P. 56, the moving party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The party opposing summary judgment "may not rely solely on allegations or denials in its own pleadings . . . ." Fed. R. Civ. P. 56(e)(2). Nor may it rely on statements in briefs. Smith v. Kyler, 295 F. App'x 479, 481 (3d Cir. 2008)(per curiam)(nonprecedential)(quoting Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511-12 (3d Cir. 1994)). "[R]ather, its response must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). "'The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Colwell v. Rite-Aid Corp., F.3d , , 2010 WL 1376301, at *3 (3d Cir. 2010)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
We have reviewed the parties' evidentiary submissions, the defendants' Statement of Undisputed Material Facts and the plaintiffs' Counter-statement of Material Facts, including their admissions of some of the defendants' statements of material fact. Based on the foregoing, the following is the record upon which we will decide the summary judgment motions. At times we will borrow a party's language without attribution if it represents an undisputed fact.
This case begins with the June 14, 2007, search of Harold Dice's Bethel Township property. That property included a single family house, a hog barn and several wooden sheds, including a dog shed. (Doc. 44, Defs.' Statement of Undisputed Material Facts (SMF) ¶ 3). The shed was a one-story wooden structure, fourteen feet by thirty-two feet, with two windows. One of the windows had an air conditioner in it. The shed contained eight wire dog crates, four feet by four feet, and six wire crates, four feet by six feet. (Id. ¶ 32). Dianne Dice had bought the dog shed in the early 1990s and used it to contain the dogs that she was breeding for sale in the 1990s. According to her, she was no longer breeding dogs in June 2007 and the nineteen dogs in the shed at that time were "leftovers" she was gradually selling off. (Doc. 45-10, Dianne Dice Dep., CM/ECF p. 17).*fn1
The Dices were planning to move to their dairy farm a few miles away, and in early June Harold Dice hired a neighbor to build a burn pit on the Maple Drive property so that they could burn brush and trees as a way of preparing the property for sale. (Doc. 60-2, Harold Dice Dep., p. 14-15). Harold Dice was not home while the neighbor dug the pit, (id., p. 16), and Harold and Dianne Dice agreed the pit had been dug too close to the dog shed, (id., p. 15; doc. 45-11, p. 13), although they differed on how far apart they were. Dianne Dice said it was ten feet and Harold Dice said it was more like twenty or thirty feet. (Doc. 60-2, p. 15).*fn2 Harold Dice used the pit for ten days, including the day of the dog shed fire, June 14, 2007. (Id., pp. 20, 27-28). The Dices used the pit to burn trees, brush, wooden furniture from the house, old tax documents, and newspapers and magazines. (Id., pp. 17-18). According to Harold Dice, the burn pit was visible from the roads alongside the property. (Id., p. 26).
Defendant, Carl Johnson, was a Lebanon County Humane Society animal investigator. As such, Johnson was limited to collecting information about animals - animals in distress, lost animals, possible animal cruelty and related matters; he had no authority under state law to arrest, to request or execute warrants, or to cite individuals for animal cruelty. (Doc. 44, Defs.' SMF ¶ 5). Johnson's supervisor, defendant Gregory Setzer, was a police officer for the Humane Society and did have authority under state law to apply for search warrants and execute them and bring animal cruelty charges against individuals before magisterial district judges. (Id. ¶ 6).
Johnson and Harold Dice knew each other. In 2004, Johnson rented an apartment in a building owned by Harold Dice in the City of Lebanon, Pennsylvania.*fn3
Dice sued Johnson for eviction and non-payment of rent. Johnson said the apartment was uninhabitable after the ceiling gave way, in part with water coming in from the bathroom above. Johnson prevailed but Dice said only because he had forgotten about the hearing on his lawsuit and thus had failed to appear. (Doc. 45-2, Johnson Dep., p. 15-16; doc. 60-2, Dice Dep., p. 69-70).
At some point before 2007 (perhaps about July of 2006), Johnson received his first complaint about the Bethel Township property, from a neighbor "five houses down," and at a time when he did not know it was the Dices' property. (Doc. 45-2, Johnson Dep., pp. 23-24). The neighbor told Johnson that the Dices' property was in tremendous disrepair and that there were animals on the property that were suffering. When he arrived, Johnson could see and hear dogs "everywhere." As he pulled up and got out of his vehicle, the Dices told him to get off the property. (Id.; doc. 44, Defs.' SMF ¶ 8).
According to Johnson, in March or April 2007, Johnson investigated reports of a woman with several Great Danes, emaciated and suffering from gross alopecia, that she said she had gotten from the Dice family. (Doc. 45-2, Johnson Dep., p. 16, 17, 19, 20). The woman told Johnson there were other dogs in similar condition still at the property. (Id., p. 16). Based on his previous experience, Johnson knew there was more than one or two dogs on the property, so he arranged for Diane Buhl, the local state dog warden, to accompany him for any state-law violations. (Id.). Johnson and Buhl knocked on the front door and Johnson told the person who answered (either Harold Dice's wife or son) that he was there on a complaint and that he would like to see the dogs. The person replied that there was "nothing wrong [there] with any dogs." (Id., p. 20). At that point, Harold Dice came from the rear of the house, and as soon as he made eye contact with Johnson, told Johnson "to get the 'F' off the property" and that he was not allowed there. (Id., p. 20-21).
Dice has a different recollection of this encounter. According to Dice, it happened in January 2007, and Johnson was there to "harass" him. (Doc. 60-2, Harold Dice Dep., p. 12). Dice "chased him off," telling him never to come back. (Id.). According to Dice, Johnson had no reason to get on him just because Johnson owed him money. (Id.).*fn4
According to Johnson, a few days before June 14, 2007, a neighbor of the Dices complained to him that she had been on the property and had heard the dogs yelping all night and that smoke was entering the dog shed. She could also detect "foul smells and odors" coming from the shed. (Doc. 45-2, Johnson Dep., p. 26). The neighbor was identified as Natasha Kale, (doc. 45-3, Marinkov Dep., p. 5), who lived "in the next house back behind" the Dices. (Doc. 60-2, Harold Dice Dep., pp. 12-13).
Johnson drove by the Dice property and could see a burn pit in use within about six feet (his estimate) of the dog shed and also observed smoke entering the shed. (Doc. 45-2, Johnson Dep., p. 26). Because the burn pit raised issues related to municipal codes, Johnson contacted defendant Brenda Marinkov, the Bethel Township zoning officer and code-enforcement officer. Johnson was concerned about the danger to the dogs given the proximity of the burn pit to the shed. (Id., pp. 26-27).
The day before the June 14, 2007, inspection, he and Marinkov viewed the Dices' property from an adjoining property. At that time, there was no fire in the pit, just some smoldering embers. The dogs could be heard yelping and they could smell the animal fecal matter emanating from the shed. (Id., p. 27). Marinkov said that no application had been made to build such a large burn pit in close proximity to the shed. (Id.).
It was decided that they would visit the Dices' property. As Johnson saw it, they had a complaint from a neighbor and their own visual inspection indicating the dogs were endangered. (Id.). The problem was that Johnson was not allowed on the property, and Marinkov lacked experience as a code-enforcement officer. (Id.; doc. 45-3, Marinkov Dep., p. 8). Marinkov checked with the Township supervisors. They advised her to seek the assistance of Lebanon County or the City of Lebanon. (Doc. 45-3, Marinkov Dep., pp. 7-8). Johnson suggested that she contact Chris Miller, in charge of code inspections for the City. (Doc. 45-2, p.27). On the day of the inspection, Miller assigned defendant Jerry Fisch, a part-time code-enforcement officer for the City to assist Marinkov. Fisch was working that day because it was his day off from his full-time job as an optician. (Doc. 45-4, Fisch Dep., pp.7-8).*fn5 Johnson also contacted Diane Buhl, a state dog warden, because of the dog issues involved, and she agreed to go out to the property as well. (Doc. 45-2, Johnson Dep., p. 27).
As a part-time City inspector/codes enforcement officer, Fisch had dealings with Harold Dice on a weekly basis because Dice owned a number of properties in the City. (Doc. 44, Defs.' SMF ¶ 13). Fisch and Harold Dice were friends; they had a mutual respect for each other and confided in each other. (Id. ¶ 15). Harold Dice estimates their working relationship went back ten years before June 2007. (Id. ¶¶ 16 and 17). In fact, Fisch had been sent to investigate the complaint made by Carl Johnson about the apartment he had rented from Dice. Dice's workers fixed it promptly. (Id. ¶ 14). Fisch said that whenever code issues arose on his properties, Dice would take care of things right away. (Doc. 45-4, Fisch Dep., p. 17).
On June 14, 2007, Fisch, Marinkov and Johnson met at the Bethel Township building around 10:00 a.m. Buhl was not at the meeting but she met later that morning with Johnson. Marinkov and Fisch left the Township Building for the Dice property and were followed shortly thereafter by Buhl. Johnson stayed behind, parked in a parking lot about a mile away from the Dice property. Johnson told the others that he could be in cell phone contact with them if necessary. (Doc. 44, Defs.' SMF ¶ 26). Until he was on his way to the Dice property, Fisch was unaware he was going to inspect property owned by the Dices. (Doc. 45-4, Fisch Dep., pp. 12-13, 16).
When Marinkov and Fisch arrived at the Dice property, they could see the burn pit and hear the barking dogs. They knocked on the door of the Dice house. The door was answered by Andy Dice, one of the Dice sons. After a few moments, Dianne Dice came to the door. Marinkov and Fisch explained that they were building-code and zoning-enforcement officers and that they wanted to get onto the property with respect to three issues: (1) the burn pit; (2) whether the dog shed was a new structure that had required a permit; and (3) the number of dogs on the property, indicating a possible illegal kennel. Dianne Dice refused access to the property and ordered Marinkov and Fisch off. (Doc. 44, Defs.' SMF ¶ 27; doc. 45-4, Fisch Dep., p. 15; doc. 45-10, Dianne Dice Dep., p. 36, 38-39).
Fisch countered that it was not her property; it was her father's, but if Harold Dice told them to leave, they would. (Doc. 45-4, Fisch Dep., p. 15). Harold Dice was contacted by phone. According to Fisch, he told Dice what they were checking for, but if he wanted them to leave they would. "So they talked some more." (Doc. 45-4, Fisch Dep., p. 16). Fisch again told him that he "was sent out by Chris Miller to assist Brenda to check into these violations." (Id.). Dice replied that Fisch had "always been fair with" him and "honest with" him and agreed to the inspection. (Id., p. 17). But he said that they had to deal with Dianne about the dog shed because they were her dogs. (Id.). At one point, Dice might have asked if Carl Johnson was there, and Fisch said no. (Id.).
According to Harold Dice, Fisch told him over the phone he wanted permission to go on the property to investigate the three issues of the possible new construction, the burn pit, and the number of dogs. (Doc. 60-2, Harold Dice Dep., pp. 22-23). Dice did not see any need for it since Fisch was not from Bethel Township. (Id., p. 23). But Fisch "kept insisting and insisting and insisting if (sic) you wish you would let us go on there if I have to go get a search warrant you wished you would." (Id.). Between Fisch and Marinkov, Dice was called five or six times, over a span of a half hour to forty-five minutes. They both said the same thing: "You better let us on there. You wished you would've." (Id., p. 25). "[I]t was all always a threat," a threat to get a search warrant if he did not consent. (Id.). As Dice testified later in the deposition: "They made it real simple . . . You're gonna give us permission to let us on or we're going for a search warrant. But there was no question about getting a search warrant. And that's the way it is. You're gonna do it or we're gonna do it. So I gave 'em permission under pressure." (Id., p. 42). Dice thought he had no choice but to grant permission because he thought (erroneously) they did not need probable cause to get a search warrant, (id., p. 52), and they repeatedly said they were going to get a warrant. (Id., p. 53). In a declaration submitted in opposition to summary judgment, Dice adds that Fisch and Marinkov also told him refusal "wouldn't be in [his] best interest." (Doc. 61-3, Dice Decl. ¶ 3). Dice "took this as a threat" since Fisch would make his "life troublesome" in regard to his Lebanon City properties. (Id.).
As noted, Harold Dice had given no permission to check the shed for the number of dogs, leaving that to Dianne Dice, who was responsible for the dogs. Dianne Dice initially said they could not go in but eventually agreed that they could if they gave her a half hour to clean up, as she had just gotten back to the house. (Doc. 45-10, Dianne Dice Dep., p. 45). Dianne Dice and her brother spent forty-five minutes hauling three or four garbage bags of fecal matter and urine-soaked wood shavings out of the dog shed. (Doc. 44, Defs.' SMF ¶ 31; doc. 45-4, Fisch Dep., p. 23).
Having ostensibly obtained consent to do so, Marinkov and Fisch investigated the Plaintiffs' property and discovered possible violations of the Township's ordinances including the open burn pit which was visible from the road. (Doc. 44, Defs.' SMF ¶ 28). The permit for new construction was no longer an issue because the shed was obviously not new. After Dianne Dice completed her cleanup of the dog shed, Marinkov, Fisch and Buhl were permitted access to it. According to Marinkov and Fisch, after the cleanup, there was still an overpowering odor of urine and there were dog dishes crusted with fecal matter. (Doc 45-4, Marinkov Dep., p. 24; doc. 45-4, Fisch Dep., p. 23). Fisch did note that the new bedding was fresh and that the dogs looked good. (Doc. 45-4, Fisch Dep., p. 23).
Before Buhl left the Dice property, she asked to see the licenses for all nineteen dogs as well as proof of rabies vaccination. Dianne Dice was unable to produce licenses for some of the dogs and did not satisfy Buhl for at least one of the vaccinations. Buhl cited Dianne Dice for violations of the state dog law. (Doc. 60-3, Dianne Dice Dep., p. 32; doc. 45-4, Fisch Dep., pp. 23-24, 25; doc. 45-3, Marinkov Dep., p. 26).
The Township Ordinance defines a kennel as "any premises, except where accessory to an agricultural use, where (3) or more dogs, ten (10) weeks in age or older, are kept or boarded." (Doc. 44, Defs.' SMF ¶ 33). The Ordinance prohibits a kennel in certain areas of the Township without a special exception or variance. The parties dispute whether the kennel limitation applied to the Dices, but the three-dog limit led to a discussion about reducing the number of dogs on the property to three.
Marinkov and Dianne Dice had a conversation about this but do not agree upon what was said. According to Marinkov, Dianne Dice stated that she would euthanize the dogs for as little as $10 per dog. Marinkov replied that she would buy the dogs from Dice for $15 a dog in order to avoid their euthanization. Dianne Dice then supposedly replied that she would rather eat the dogs then sell them to Marinkov. (Doc. 45-3, Marinkov Dep., pp. 28-29; doc. 45-4 Fisch Dep., p. 24). According to Dianne Dice, when she was told that she had to reduce the number of her dogs to three or less, she stated that she had three options: she could sell the dogs, she could give them away or she could have a veterinarian euthanize them. (Doc. 60-3, Dianne Dice Dep., p. 33).
According to Marinkov, she told Dianne Dice and Andrew Dice that "they may not continue to burn" in the pit, (doc. 45-3 Marinkov Dep., p. 28) that this was "basically . . . an order not to relight the pit." (Id., p. 36). According to Dianne Dice, they were told to "close the pit up." (Doc. 60-14, Dianne Dice Decl. ¶ 10).
As Fisch and Marinkov were leaving the property, Marinkov and Dianne Dice had another exchange of words. According to Marinkov, tensions had eased as the inspection ended, so Marinkov said to Dianne Dice jokingly that she would "kick her butt." (Doc. 45-3, Marinkov Dep., pp. 26-27). Fisch also said the comment was "in jest and everyone was smiling." (Doc. 45-4, Fisch Dep., p. 24). On the other hand, Dianne Dice testified that Marinkov was serious when she "stuck her finger in [Dice's] face" and said "Dianne, I'm older than you, I'm bigger than you, and I will kick your ass if you don't get rid of those dogs quick." (Doc. 60-3, Dianne Dice Dep., p. 36). This "shocked" Dice. Dice "stepped back." She thought Marinkov "was going to hit [her]." (Id.). Dianne Dice admits that Marinkov has the right to investigate zoning and code violations, (doc. 45-11, Dianne Dice Dep., pp. 26, 28, 29), but that she brought no charges against her. (Doc. 44, Defs.' SMF ¶ 47).
After the inspection, building code and zoning officers Fisch and Marinkov and State Dog Warden Buhl met with Johnson to describe to him their observations and findings upon their inspection of the Dice property. (Id., ¶ 49). Buhl and Johnson then met with defendant, Greg Setzer, the Humane Society police officer. Setzer knew that Buhl, although then a state dog warden, formerly had been a Humane Society officer, so he was aware that she knew about cruelty laws. (Doc. 6012, Setzer Dep., p. 11). Buhl described the conditions of ...