Federal District Court Opinions

WALKER v. TELLER COUNTY BOARD OF COUNTY COMMISSIONERS,
(Colo. 12-7-2006) SAMUEL WALKER and DIANE WALKER,
Plaintiffs, v. TELLER COUNTY BOARD OF COUNTY COMMISSIONERS;
TELLER COUNTY ANIMAL CONTROL; TELLER COUNTY SHERIFF’S
DEPARTMENT; LARRY DIETSCHE in his capacity as Deputy Sheriff
and individually; CHERIE FRANCE, in her capacity as Animal
Control Officer and individually, and KEVIN DOUGHERTY, in
his capacity as Sheriff and individually, Defendants.
Civil Action No. 05-cv-02545-RPM. United States District
Court, D. Colorado. December 7, 2006

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

RICHARD MATSCH, District Judge

This is an action for damages under 42 U.S.C. §
1983. The plaintiffs’ claims arise out of a series of state
court criminal proceedings involving charges against Samuel
Walker for violations of the Animal Control Ordinance of
Teller County, Colorado, and state law prohibiting cruelty
to animals. On June 7, 2006, the defendants moved for
summary judgment, arguing that the plaintiffs’ claims are
precluded by Heck v. Humphrey, 512 U.S. 477 (1994), and the
doctrines of res judicata and collateral estoppel.

The Walkers raise and train sled dogs for competition. They
own approximately 40 acres of land in Teller County,
Colorado, located at 1711 Wildhorn Road, Florissant,
Colorado (“the Page 2 property”). During the period
relevant to this action, the Walkers resided on the
property and maintained a dog kennel on it.

In 1998 the Walkers obtained a state kennel license. A
state kennel license was required because Teller County
issues licenses only for kennel facilities housing fewer
than 20 dogs. The Walkers at times kept more than 100 dogs
at their kennel.

In 2003, Mr. Walker was charged with 103 counts of failure
to obtain a dog license in violation of section 3.5 the
Teller County Animal Ordinance. Mr. Walker was also charged
with one count of cruelty to animals in violation of C.R.S.
§ 18-9-202. These actions, designated Teller County
Case Nos. 03-M-94 and 03-M-122, were consolidated. On
August 1, 2003, following a trial to the court, County
Court Judge Jackson L. Peters found Mr. Walker guilty of
those offenses. (Defs.’ Ex. L). Mr. Walker was sentenced to
24 months of unsupervised probation and assessed fines and
court costs of approximately $2500.00. (Defs.’ Exs. A & D).
The probation order required Mr. Walker to make the dogs
available for inspection upon request by the Teller County
Animal Control. (Defs.’ Ex. A). Mr. Walker’s appeals of
those convictions were unsuccessful. (Defs.’ Ex. B).

In 2003 the Fourth Judicial District Attorney’s Office
also brought six separate actions against Mr. Walker for
disturbing the peace and for violations of the section of
the Teller County Animal Control Ordinance pertaining to
barking dogs. A trial to the court was held on March 3-5,
2004. Teller County Court Judge Peters found Mr. Walker
guilty on all charges except those in Case No. 03-M-464.
(Defs.’ Ex. C). The court imposed fines and ordered that
the Walkers could maintain no more than 30 dogs on their
property. (Defs.’ Ex. M). Mr. Walker appealed Page 3 these
convictions, but as described below, he voluntarily
dismissed the appeals in December 2004 as part of a plea
agreement. (Defs.’ Ex. J).

Other dog-related criminal charges were brought against
Mr. Walker in 2003 and 2004.[fn1] On December 12, 2004, a
consolidated disposition hearing was held in nine cases
(03-M-45; 04-M-67; 04-M-215; 04-M-245; 04-M-339; 04-M-357,
04-M-358; 04-M-468, and 04-M-537). (Defs.’ Ex. I). The
transcript of that hearing shows that Mr. Walker agreed to
remove all of the dogs from the Teller County property, and
the State agreed to dismiss the pending charges against Mr.
Walker. Mr. Walker also agreed to dismiss the appeal of his
convictions in the five “barking dog” cases, Case Nos.
03-M-409, 03-M-418, 03-M-514, 03-M-517, and 03-M-599.
Teller County Court Judge Peters approved the disposition.
(Defs.’ Ex. I).

The Walkers brought this action on December 15, 2005,
seeking damages in an amount that will compensate them for
the fines assessed in the criminal actions, their legal
fees incurred in defending those actions, the cost of
purchasing new property outside the county for the
relocation of the kennel, lost wages, and emotional
distress. In their first claim for relief, brought under 42
U.S.C. § 1983, the plaintiffs allege violations of
rights protected by the United States Constitution. The
plaintiffs’ second claim for relief, for violations of
rights protected by the Colorado Constitution, was
dismissed on March 22, 2006, on the plaintiffs’ motion for
voluntary dismissal. Page 4

The plaintiffs’ section 1983 claim is based in part on
allegations that their rights to Due Process guaranteed by
the Fifth and Fourteenth Amendments to the United States
Constitution were violated by the defendants’ failure to
independently investigate the barking dog complaints and
the delegation of enforcement of the barking dog ordinance
to the Walkers’ neighbors. Compl. §§ 22-37,
72. The defendants argue that there is no constitutional
right to an “independent investigation.” The plaintiffs
have not provided any authority supporting the proposition
that the defendants had a duty to conduct a more thorough
investigation of the barking dog incidents before issuing
criminal citations or continuing with the prosecution of
those offenses.

Even if the citations issued to Mr. Walker were subject to
challenge on this basis, the plaintiffs’ claim could not
proceed under section 1983. The plaintiffs’ claim is
premised in part on their contention that Mr. Walker should
not have been prosecuted for the offenses for which he was
convicted in Teller County Case Numbers 03-M-409; 03-M-418;
03-M-514; 03-M-517, and 03-M-599. “[T]o recover damages for
allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to
make such determinations, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). It is undisputed that Mr. Walker’s
convictions for violations of the Animal Control Ordinance
pertaining to barking dogs have not been reversed,
expunged, declared invalid or called into question by any
court. Section 1983 does not provide a basis for the
plaintiffs’ claim that defendants’ conduct related to Page
5 those criminal proceedings violated their Due Process
rights. The unadjudicated citations for barking dog
violations were dismissed as consideration for Mr. Walker’s
agreement to remove the dogs from the Teller County
property. The plaintiffs are bound by that bargain and
cannot now challenge those charges as constitutionally
invalid.

The plaintiffs’ section 1983 claim is also based on
allegations that their rights to equal protection of the
laws guaranteed by the Fourteenth Amendment were violated
because they were the target of selective enforcement of
the Teller County Animal Control Ordinance pertaining to
dog licensing. Compl. §§ 57-68, 74. This
claim is also precluded. During the trial of Teller County
Case Numbers 03-M-94 and 03-M-122, Mr. Walker complained of
selective enforcement, asserting that the County had not
required other kennel owners to obtain licenses and tags for
each individual dog in a licensed kennel. The court did not
accept that argument as a defense. If this court were to
adjudicate that claim favorably to the plaintiffs, it would
undermine the convictions and that is what Heck v. Humphrey
precludes.

The plaintiffs’ section 1983 claim is also based on
allegations that their rights to be secure from unlawful
search and seizure were violated in November 2004, when
Animal Control Officer Cherie France entered their property
through a closed and locked gate, entered their home, and
overfed the dogs, causing some of the dogs to show signs of
sickness. Compl. §§ 38-56, 73. The plaintiffs
allege that Mr. Walker was charged with 109 counts of
animal cruelty after this incident. Compl. § 53.

In their motion for summary judgment, the defendants argue
that Heck v. Humphrey precludes the plaintiffs’ claim
arising out of Officer France’s entry. In support of this
argument, the defendants assert that Officer France’s entry
resulted in the charges and convictions at issue in Page
6 Case Nos. 03-M-409, 03-M-418, 04-M-514, 03-M-517, and
03-M-599 (the barking dog cases), and those convictions
have not been overturned.

This argument fails. The convictions in the barking dog
cases preceded Officer France’s entry onto the Walker
property. Mr. Walker was convicted in Case Nos. 03-M-409,
03-M-418, 04-M-514, 03-M-517, and 03-M-599 — the
five barking dog cases — on March 5, 2004. (Defs.’
Ex. C). Officer France’s entry onto the Property occurred
on November 4, 2004. (Pls.’ opp’n br. at 5, and exhibits 1
& 2). The legality of Officer Frances’ entry onto the
Walker property has not been litigated. At the disposition
hearing on December 20, 2004, County Court Judge Peters
observed:

All right. I have all of these cases. The most recent one
is 04M537, which is a hundred-some-odd counts of cruelty
to animals that arises from an inspection that was made.
And I don’t know whether it was a lawful inspection or not
under the circumstances. I guess that is something that
will go unresolved. And there’s disputed information about
whether or not the dogs had been properly watered and fed.

(Defs.’ Ex. I, at 16:1-5). The record indicates that the
animal cruelty charges that were brought after Officer
France’s November 4 entry were dismissed as part of the
December 20, 2004, plea agreement. Thus the plaintiffs’
complaint about Officer France’s conduct does not implicate
the validity of any of the convictions. Heck v. Humphrey
does not preclude the Fourth Amendment claim against Cherie
France.

The defendants’ motion for summary judgment did not address
the merits of this claim, but it is apparent from the
parties’ briefs that there are factual disputes about the
propriety of Officer France’s entry onto the Walker
property. The defendants contend that Officer France
entered the Walker property to conduct an inspection under
the authority of the probation order Page 7 entered on
August 28, 2003, in Case Nos. 03-M-94 and 03-M-122 (the
2003 animal cruelty and licensing cases). That order
stated, “Defendant is to make dogs available to Teller
County Animal Control within 1-hour notice, unless the
Defendant is in Colorado Springs then he has two hours.”
(Defs.’ Ex. A). According to the plaintiffs, Officer France
called their attorney on November 4, 2004, requesting that
the dogs be made available for inspection, and in that
conversation the Walkers’ attorney informed Officer France
that the probation order was stayed, that the Walkers were
unavailable that day, and that the inspection would need to
be postponed. The plaintiffs assert that Officer France
ignored the information communicated by their attorney and
entered their property and their home without
authorization.

The plaintiffs have stated a valid claim under section
1983 against Officer France. As to the other defendants,
however, the allegations of the complaint are insufficient
to support liability. There are only vague allegations
regarding the involvement of Deputy Sheriff Dietsche and
Sheriff Dougherty in the alleged illegal entry, and those
individuals cannot be held liable under section 1983 for
the actions of Officer France. The plaintiffs’ claims
against the Board of County Commissioners, the Teller
County Animal Control, and the Sheriff’s Department are
deficient because the allegations of official policy,
customs, or practices are conclusory.

Based on the foregoing, its is

ORDERED that the plaintiffs’ claims against all defendants
are dismissed with the exception of the Fourth Amendment
claim against Cherie France in her individual capacity.

[fn1] On September 29, 2004, a trial to jury began in six
consolidated cases (04-M-67, 04-M-215, 04-M-245, 04-M-339,
04-M-357, and 04-M-358). (Defs.’ Ex. G). The record is not
entirely clear, but it appears that a mistrial was declared
after it was discovered that a member of the jury panel had
failed to disclose relevant information.