KEVIN H. SHARP, District Judge.
Before the Court are two Motions to Dismiss the Amended Complaint, one filed by Defendants who are officers of the Tennessee Wildlife Resource Agency, Ed Carter, Mitchell Bailey, Dale Grandstaff, Brad Jackson, and Shawn Karns (Docket No. 46), and the other filed by Defendant Thomas Southerland (Docket No. 48). For the reasons that follow, both Motions will be granted.
Plaintiff William A. "Spook" Spann, a resident of Tennessee, is a professional hunter and host of the Pursuit Channel's television program "Spook Nation." He brings suit under 42 U.S.C. § 1983, claiming officials and agents of the Tennessee Wildlife Resource Agency (the "TWRA Defendants") and Plaintiff's former cameraman, Defendant Thomas Southerland, violated his rights under the United States and Tennessee Constitutions.
The TWRA Defendants are Executive Director Ed Carter, Agent/Warden Mitchell Bailey, Sergeant Dale Grandstaff, and Agents Shawn Karns and Brad Jackson. Plaintiff's Amended Complaint also names "John Does 1-10" who are "agents, officers, and others who have assisted the TWRA under color of state law yet [sic] while in their individual capacities and the named Defendants herein in violating Mr. Spann's constitutional rights." (Docket No. 21-1 at 3). Plaintiff asserts that although the TWRA is a "rogue agency" that has spent "countless man hours pursuing Mr. Spann, terrorizing his family, threatening his family, invading his privacy and converting and destroying his property," it holds sovereign immunity and thus, is not a party to this lawsuit. (Id. at 4).
The following facts are alleged in the Amended Complaint. In 2007, Plaintiff purchased two adjacent farms in Stafford, Kansas, where he had hunted for some years, and pursued a lease agreement (to be completed in 2008) for a third neighboring property. He acquired the properties for the purpose of hunting. In November of that year, he entered the leased property to scout for deer and erect a tree stand. While there, he saw a "monster buck and successfully stalked and harvested it." (Docket No. 21-1 at 5). The hunt was captured on film and later featured in two hunting magazines, but Plaintiff's then-cameraman was not credited for the footage. The cameraman (unnamed in the Amended Complaint), allegedly a friend of Defendant Grandstaff, resigned in protest. Plaintiff later heard that the cameraman planned to ruin his hunting career.
Over two years later, in early 2011, TWRA officers questioned Defendant Southerland, Plaintiff's subsequent cameraman, in order to obtain the footage of the "monster buck" shot in 2007. Officers then seized the buck's rack from Plaintiff's house. He was charged in a Kansas federal district court with "harvesting the 2007 Kansas buck with the wrong hunting license and violating the federal Lacey Act for transporting the buck from Kansas to his primary residence in Tennessee." (Id. at 6). In February 2013, Plaintiff pleaded guilty to a reduced charge: a misdemeanor for unlawful transportation of the illegally hunted buck. As a condition of his probation, he was prohibited from hunting anywhere in the United States for six months.
Plaintiff asserts that, in March 2013, Defendant Southerland gave two-week notice of his resignation and was "enlisted by his best friend, Mitchell Bailey, a TWRA officer, and Defendant, Dale Grandstaff, to work undercover to set up his boss for a probation violation during spring turkey season." (Id. at 6). To that end, Defendants "set up several cameras on three of Mr. Spann's private farms without search warrants and without a basis to obtain search warrants." (Id.). At some later point, animal feed was scattered on the ground in view of the cameras, though it is unclear from the record whether Defendants were responsible, or whether the bait was set by Plaintiff or Defendant Southerland at Plaintiff's direction. Plaintiff notes he had "an expectation of privacy on these properties and had not consented to these cameras or the Defendants' trespassing on his property." (Id.).
In June 2013, Plaintiff's probation officer filed a petition with the court in Kansas alleging Plaintiff had violated his probation by: "(1) hunting; and (2) committing a state crime, specifically, violating Tennessee law by `baiting' fields within ten days of hunting turkeys." (Docket 49-2 at 5). In the subsequent probation violation hearing, the court found that agents of the TWRA and United States Fish and Wildlife Service had opened an investigation of Plaintiff's activities during the spring 2013 hunting season and placed "numerous surveillance cameras on three parcels of land which Mr. Spann owned or at least had rights of access to for hunting purposes." (Docket No. 49-2 at 6). The court also found that, over the following months, the cameras captured Plaintiff accompanying other hunters and participating to a degree that constituted "hunting" in violation of his probation. This included "dressing in camouflage and other hunting equipment in order to pursue animals for himself or others to kill." (Id. at 20-21).
Based on these determinations, the court extended Plaintiff's probation until February 28, 2016, and prohibited him from hunting for an additional year. (Id. at 28). Plaintiff contends the court's findings were "based in large part on the false testimony of Defendant, Thomas Southerland." (Docket No. 21-1 at 8).
The Amended Complaint references a number of other incidents to illustrate the "ongoing harassment" that Plaintiff and his family allegedly received at the hands of Defendants. TWRA agents were repeatedly seen on streets near Plaintiff's home and at least once near his father's home. They questioned Plaintiff's hunting acquaintances. Plaintiff also heard from an unspecified source that TWRA agents cited him as an example of poor hunting ethics in hunter safety courses.
Plaintiff offers more specific examples of alleged harassment as well. For instance, an anonymous caller reported a gun in Plaintiff's son's truck while he was at school. Plaintiff's son, a member of the school's rifle team, was arrested and suspended. Plaintiff believes the informant was "one of these named Defendants or their agents." (Id. at 7). The criminal case against Plaintiff's son was later dismissed.
In June 2013, TWRA agents, including Defendants Karns and Jackson, raided the home of Jason Dotson, Plaintiff's current cameraman, and "seized all computers, childrens [sic] electronics, cameras and footage, severely damaging Mr. Spann's ability to make a living." (Id.). Defendants also seized property belonging to Plaintiff from a taxidermy shop.
The following month, TWRA officers served Plaintiff with a search warrant for his cellular phone. Plaintiff claimed not to have the phone and the officers did not search his home at that time. However, they returned on February 21, 2014, with another search warrant for the same phone. During the subsequent search, Plaintiff claims his property was damaged. He was arrested and charged with tampering with evidence and insurance fraud, as was his wife, Marty Spann. Mrs. Spann was escorted out of the school where she worked as a guidance counselor and handcuffed in the parking lot. Plaintiff alleges she was jailed for several hours while the district attorney present and two TWRA officers, including Defendant Karns, "attempted to coerce her to testify against her husband" and "refused to allow her attorney access" to her. (Id. at 9).
The Amended Complaint concludes these instances amount to "constant and unreasonable surveillance" of Plaintiff and his family, conducted "without a basis other than to exact unlawful penalties on him and to harm his ability to make a living as a hunter," in violation of Plaintiff's constitutional rights under the Fourth, Fifth, and Fourteenth Amendments. (Id. at 10-11).
As a general rule, in considering a motion to dismiss under Federal Rule of Civil Procedure 12(b), a court must take "all well-pleaded material allegations of the pleadings" as true.
"Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights `under color' of state law. Anyone whose conduct is `fairly attributable to the state can be sued as a state actor under § 1983.'"
In this case, Plaintiff fails to establish a cause of action under § 1983. The Amended Complaint offers only vague invocations of the Fourth, Fifth, and Fourteenth Amendments, leaving the Court to fully articulate each Amendment's protections and apply them to the corresponding facts. Despite the Court's efforts to elucidate the specifics of these claims, the facts alleged, even when viewed in the light most favorable to Plaintiff, fail to show Plaintiff has been deprived of a constitutional right.
As a preliminary matter, the Court notes that Plaintiff's claims may be time-barred, as many of the pertinent events occurred over a year before the filing of the original Complaint on June 5, 2014. "Congress did not enact a statute of limitations for actions brought under 1983; thus, it is the duty of federal courts to apply the state statute of limitations most analogous to the asserted claim."
Plaintiff contends that the limitations period must be measured from when he knew or should have known of his injury, specifically, the presence of the cameras on his property. To this end, he has filed a declaration testifying that he first learned that TRWA agents had installed the cameras at his probation revocation hearing on June 28, 2013, thereby bringing his Fourth Amendment claim just within the limitations period. (Docket No. 26).
When viewed in light of the entire record, Plaintiff's declaration elicits some skepticism. At the June 28, 2013 probation revocation hearing, Plaintiff exhibited photos of himself managing mineral licks around the locations where the cameras had been placed (providing an alternative to the Government's explanation for his presence on camera, to wit, that he was spreading feed to illegally bait turkeys). Plaintiff testified that he had taken the photos at the request of his attorney after he "saw the government's evidence." (Docket No. 46-2 at 13). On cross-examination, Plaintiff repeated this admission:
(Id. at 5-6).
This testimony indicates Plaintiff knew of the facts giving rise to his Fourth Amendment claim some time prior to June 28, 2013. It is highly unlikely that he received the government's evidence (the video footage), consulted with his lawyer to formulate a response, and took the photographs that he offered as evidence to refute the government's allegations all on the day of the hearing. Thus, the clock on the limitations period very likely started to run before June 28. If Plaintiff learned of the cameras prior to June 5, 2013, his Fourth Amendment claim is indeed time barred. However, even if Plaintiff's claim does not run afoul of the statute of limitations, he has nonetheless failed to fulfil his minimal burden at the dismissal phase, as set forth below.
The Amended Complaint makes only one explicit allegation of a Fifth Amendment violation: "Plaintiff avers that the false testimony of Defendant, Southerland, which was suborned and fostered by the other Defendants with the knowledge that his testimony was false, constitutes a violation of the Fifth Amendment." (Docket No. 21-1 at 12). Plaintiff acknowledges this "is not actionable as a basis for a cause of action" but contends "it is indicative of the unlawful actions and behavior of the Defendants and the degree to which they will go in their individual capacities to violate the Plaintiff's constitutional rights and to harm him as part of their illegal covin [sic] and conspiracy." (Id.). As Plaintiff apparently agrees that this argument raises no viable cause of action, it need only be treated briefly.
It is well-settled that "[t]he Fifth and Fourteenth Amendments apply to actions of the federal and state governments respectively."
The Parties' filings briefly touch on the Fifth Amendment's Takings Clause, which precludes the taking of private property for public use without just compensation. It is first mentioned in TWRA Defendants' Motion to Dismiss. There, grasping to anticipate the specifics of Plaintiff's Fifth Amendment claim, Defendants identify the Takings Clause and the Due Process Clause as "the only possible provisions under which the [Plaintiff's Fifth Amendment] claim could proceed." (Docket No. 47 at 5-6). A claim for unconstitutional taking is not ripe, Defendants contend, because Plaintiff has not yet utilized State procedures to pursue compensation. Plaintiff addresses the Taking Clause for the first time in his Response to Defendants' Motion to Dismiss, where he responds that "§ 1983 contains no exhaustion requirement beyond what Congress has provided." (Docket No. 54 at 2).
The Court finds this debate unnecessary. Plaintiff must establish two elements for an unconstitutional taking claim: (1) the Government "took [his] property," and (2) either "failed to compensate [him] justly or failed to put the property to public use."
Plaintiff fails to set forth the elements of a Takings Clause claim despite the lenient pleading standard of Rule 8. See FED. R. CIV. P. 8(a)(2). Furthermore, "it is well-established that new arguments may not be raised for the first time in a reply brief."
In similar fashion, Plaintiff's Fourteenth Amendment claim is treated in the Amended Complaint with only passing reference. The general allegations of harassment (e.g., TWRA agents cited Plaintiff as an example of poor hunting ethics, frequented his neighborhood, questioned his acquaintances, etc.) are not sufficiently articulated as to render a Fourteenth Amendment claim plausible.
The Court agrees with Defendants' observation that "Plaintiff's entire claim is based on alleged unreasonable search and seizure." (Docket No. 47 at 7). Thus, the Fourteenth Amendment is relevant to this analysis only insofar as its Due Process Clause applies the privacy protections of the Fourth Amendment to the States.
The Fourth Amendment provides that:
U.S. CONST. amend. IV. "A `search' occurs for the purposes of the Fourth Amendment when the government invades an individual's reasonable expectation of privacy."
While an individual's reasonable expectation of privacy extends to the "curtilage," or the area immediately surrounding his or her home,
Plaintiff claims that Defendants violated his Fourth Amendment rights when they installed surveillance cameras on his "private farms without search warrants and without a basis to obtain search warrants," as he "had an expectation of privacy on these properties and had not consented to these cameras or the Defendants' trespassing on his property." (Docket No. 21-1 at 6). Defendants respond that the farms are not curtilage but rather "open fields" outside the sphere of Fourth Amendment protection.
The determination of what constitutes curtilage is decided "based on the unique facts of each case."
While a home's backyard is routinely classified as curtilage, the same cannot be said of agricultural space, even when located near the home.
In this case, the first factor — proximity of the three farms to the home — is not stated specifically in the record. However, the farms are presumably far enough from Plaintiff's residence to maintain a safe distance between hunters and others, and sufficiently remote to draw wildlife. As for the second factor, there is no indication that the three farms fall within a single enclosure surrounding the home. Third, the primary use of the area appears to be hunting, not an activity "intimately tied to the home."
This conclusion is validated by looking to the "centrally relevant consideration" of this inquiry.
Defendants' alleged trespass on the farms to erect the cameras does not affect this conclusion. "In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment."
Unlike open fields, a search of the home is not reasonably conducted absent a search warrant.
"Because probable cause to search is concerned with facts relating to a presently existing condition, there arises the unique problem of whether the probable cause which once existed has grown stale."
Plaintiff alleges the search of his residence in February 2014 was unreasonable because the warrant authorizing the search was based on stale information and thus lacked probable cause.
The first warrant, which Plaintiff does not contest, was executed on June 14, 2013. It authorized a search of Verizon Wireless for "subscriber information and all stored electronic communications" relating to two cellular telephone numbers associated with Plaintiff "between 12:01 AM on 06/06/2013 and 11:59 PM on 06/07/2013." (Docket No. 46-6). Agents sought information relating to the two numbers — one Plaintiff's original cellular telephone number, the other associated with a pre-paid cellular telephone obtained after he was questioned on June 6, 2013 — on the belief devices associated with the numbers contained evidence Plaintiff had violated wildlife and hunting laws. Plaintiff subsequently filed an insurance claim on the original cellular telephone, declaring it lost. On February 20, 2014, he and his wife were indicted by a grand jury on counts of tampering with or fabricating evidence and filing a false or fraudulent insurance claim. (Docket No. 46-5).
The second search warrant was executed on February 21, a day after the indictment. It authorized a search of Plaintiff's residence, property, and vehicles for "[a]ny item which tends to memorialize the loss, acquisition, deactivation, activation, location or replacement" of cellular phones associated with Plaintiff's original number, the pre-paid cellular telephone number, and Plaintiff's wife's number from June 6, 2013 to present. (Id. at 2). Specifically, the warrant authorized the collection of any cellular phones associated with the three numbers, other electronic devices, and a wide array of documents associated with accounts and insurance claims filed for Plaintiff's original cellular telephone during the time in question. The affidavit establishing probable cause focused largely on events occurring on June 6 and 7, and no later than June 28, 2013. The warrant appears lawfully signed and there is no evidence in the record to indicate it contains false information.
First, the Court notes that an eight-month delay between the events set forth in the affidavit and the execution of the search warrant is "well within the expiration date approved by courts."
Second, when applied to the facts of this case, the four staleness variables weigh against Plaintiff's argument, due in large part to the nature of the items sought in the warrant. "In the context of drug crimes, information goes stale very quickly `because drugs are usually sold and consumed in a prompt fashion.'"
Finally, even if the information were stale, Plaintiff's claim would fail in light of the doctrine articulated in
For the sake of completeness, the Court notes that even if the surveillance of Plaintiff's farms or search of his residence were unreasonable, Defendants would be protected from liability by qualified immunity. Qualified immunity is an affirmative defense that shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate `clearly established' statutory or constitutional rights of which a reasonable person would have known."
For a right to be "clearly established," it need not be specifically announced by the Supreme Court or the Sixth Circuit. Instead, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."
In this case, given the highly individual nature of the curtilage determination, Defendants cannot be said to have violated a "clearly established right" when they determined Plaintiff's farms were open fields and conducted a search accordingly.
"[T]he protections afforded to citizens by the Fourth and Fourteenth Amendments apply only to state or government action."
A private party does not act as a state agent merely because "there was some antecedent contact between that person and the police."
Having concluded the search of Plaintiff's farms and residence was reasonable within the meaning of the Fourth Amendment, the Court need not delve far into this inquiry.
Based on the reasoning set forth above, Defendants' Motions to Dismiss will be granted. An appropriate order will enter.
