James Anderton v. Texas Parks and Wildlife , 605 F. App'x 339 ( 2015 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10297 United States Court of Appeals
Fifth Circuit
FILED
JAMES ANDERTON; JIMMIE ANDERTON, March 26, 2015
Lyle W. Cayce
Plaintiffs - Appellants Clerk
v.
TEXAS PARKS AND WILDLIFE DEPARTMENT; TEXAS ANIMAL
HEALTH COMMISSION; CARTER SMITH, Executive Director, Texas Parks
and Wildlife Department; CRAIG HUNTER, Director, Texas Parks and
Wildlife Department; L. DAVID SINCLAIR, Chief Game Warden, Texas
Parks and Wildlife Department; MITCH LOCKWOOD, Big Game Warden,
Texas Parks and Wildlife Department; DALE WATERS, Game Warden,
Texas Parks and Wildlife Department; GARY COLLINS, Game Warden,
Texas Parks and Wildlife Department; BRAD CHAPPELL, Investigator,
Texas Parks and Wildlife Department; AMBER ANDEL, Deer Breeders
Program, Texas Parks and Wildlife Department,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
No. 3:13-CV-01641
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Plaintiffs James and Jimmie Anderton appeal the district court’s
dismissal of Section 1983 and RICO claims brought against officials of the
Texas Parks & Wildlife Department (“the Department”). The Andertons also
claim the district court abused its discretion by failing to provide them an
opportunity to file an amended complaint. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
From 2000 until 2010, the Andertons possessed a current permit issued
by the Department that authorized them to breed deer. Their breeding ranch
was located east of Dallas in Quinlan, Texas. In 2010, 2011, and 2012, the
Andertons submitted applications for renewal of the permit. The Department
denied those applications without explanation.
It has been alleged in this litigation that the Andertons’s permit was not
renewed because they had illegally imported deer from another state. The
Andertons had pled guilty, as shown in a federal court judgment of February
2, 2010, to the offense of conspiring to transport wildlife in interstate commerce
in violation of Texas law. The Andertons were charged under the general
federal conspiracy statute, 18 U.S.C. § 371. The substantive federal statutes
setting forth the offense were 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(2). Those
are sections of what is called the Lacey Act. 16 U.S.C. §§ 3371-3378. The Texas
laws they were charged in an information with violating were 31 Texas
Administration Code Sections 65.609(b)(2), 65.611(h), and 65.611(i). The
Department may refuse permit issuance or renewal to any person convicted of
a violation of the Lacey Act. 31 TEX. ADMIN. CODE § 65.603(g)(2) (2010).
As mentioned above, the Andertons deer-breeding permit was not
renewed in 2010. Such a permit is valid from the date of issuance until the
immediately following July 1. 31 TEX. ADMIN. CODE 65.603(c). Apparently,
then, as of July 1, 2010, four months after their February convictions, they no
longer had a current permit to maintain breeder deer. On December 6, 2010,
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and May 1, 2011, Department officials entered and shot breeder deer on the
Andertons’ land. The Andertons allege the officials killed the deer in front of
their family and several witnesses.
In April 2013, the Andertons brought suit in the United States District
Court for the Northern District of Texas against the Texas Animal Health
Commission and the Department for violations of the Fourth, Fifth, and
Fourteenth Amendments, and the Racketeer Influenced and Corrupt
Organizations Act (“RICO”). They also sued several Department officials in
their official and individual capacities under 42 U.S.C. § 1983 and RICO.
Additionally, they brought claims for injunctive and declaratory relief against
all parties. The district court dismissed the Andertons’ Section 1983 and RICO
claims against the officials in their individual capacities under Federal Rule of
Civil Procedure 12(b)(6), and dismissed the remaining claims under Rule
12(b)(1). The Andertons appealed.
DISCUSSION
We review a dismissal under Rule 12(b)(6) de novo. Alabama-Coushatta
Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014) (citation
omitted). To survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
A claim under 42 U.S.C. Section 1983 requires that a plaintiff “(1) allege
a violation of a right secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person
acting under color of state law.” Doe ex rel. Magee v. Covington Cnty. Sch. Dist.
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ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (citation and quotation marks
omitted). Any rights the Andertons might have would arise from the Texas
statutes and regulations governing breeder-deer operations. One statute
provides that the “department shall issue a permit to a qualified person to
possess live breeder deer 1 in captivity.” TEX. PARKS & WILD. CODE § 43.352. 2
“[B]reeder deer may be held in captivity for propagation in [Texas] only after a
deer breeder’s permit is issued by the department[.]” Id. § 43.364. The permit
may be renewed annually, subject to certain requirements and exceptions. See
31 TEX. ADMIN. CODE § 65.603(d), (g).
The Andertons raise six issues on appeal, which we will analyze in the
following order:
1. The district court erred in dismissing their Fourth Amendment claims.
2. The district court erred in dismissing their substantive due process
claims.
3. The district court erred in dismissing their procedural due process
claims.
4. Alternatively, the district court abused its discretion by dismissing
their Section 1983 claims partially on grounds raised by the court sua
sponte without providing an opportunity to replead.
5. The district court abused its discretion by dismissing their RICO claim
based on pleading defects raised by the court sua sponte without
providing an opportunity to replead.
6. They stated cognizable claims against the defendants in their official
capacities for declaratory relief based on the defendants’ failure to renew
their deer breeder permit.
1 “‘Breeder deer’ means a white-tailed deer or mule deer legally held under a permit
authorized by this subchapter.” TEX. PARKS & WILD. CODE § 43.351(1).
2 All statutes and regulations referenced in the opinion are the versions that were in effect at
the time of the events in question.
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1. Fourth Amendment – Search and Seizure
The Andertons’ complaint alleges that the defendants engaged in both
an unconstitutional search of their property and an unconstitutional seizure –
the killing of the deer. The defendants did not obtain a warrant for either the
search or the seizure.
“Warrantless searches and seizures are per se unreasonable unless they
fall within a few narrowly defined exceptions.” United States v. McKinnon, 681
F.3d 203, 207 (5th Cir. 2012) (citation and quotation marks omitted). One such
exception is for a “closely regulated” industry. See New York v. Burger, 482
U.S. 691, 702 (1987). Under this exception,
a warrantless search of a pervasively regulated business is
permitted if: (1) there is a substantial government interest that
informs the regulatory scheme pursuant to which the inspection is
made; (2) the inspection is necessary to further the regulatory
scheme; and (3) the statutory or regulatory scheme provides a
constitutionally adequate substitute for a warrant.
United States v. Castelo, 415 F.3d 407, 409-10 (5th Cir. 2005) (citing Burger,
482 U.S. at 702-03).
The Andertons argue that the breeder-deer industry is not a closely
regulated industry. An industry is “closely regulated” where the “provisions
regulating the [industry] are extensive.” Burger, 482 U.S. at 704. The Court
found the operation of a junkyard to be closely regulated because the
regulations required the operator to “obtain[] a license,” “maintain [records],”
and “make such records . . . available for inspection[.]” Id. The operator was
also “subject to criminal penalties . . . for failure to comply with these
provisions.” Id. at 704-05.
As in Burger, under Department statutes and regulations a deer breeder
must obtain a permit, keep detailed records, and submit reports, and is subject
to inspection of facilities and records at any time. TEX. PARKS & WILD. CODE
§§ 43.358, 43.359, 43.364; 31 TEX. ADMIN. CODE § 65.608. Violation of the
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statutes or regulations may result in nonrenewal of a deer breeder’s permit
and criminal penalties. TEX. PARKS & WILD. CODE §§ 43.365, 43.367; 31 TEX.
ADMIN. CODE § 65.603. Accordingly, the provisions regulating the deer breeder
industry are sufficiently “extensive” to place that activity “squarely within the
class of industries to which Burger applies.” Castelo, 415 F.3d at 410 (citation
omitted); see also United States v. Fort, 248 F.3d 475, 480 (5th Cir. 2001)
(holding that where an industry is governed by “extensive” regulations, the
Burger principles apply).
The Andertons next argue that the deer-breeder statutes and regulations
are not an adequate substitute for a warrant. To provide a constitutionally
adequate substitute for a warrant, a regulatory scheme “must perform the two
basic functions of a warrant: it must advise the owner of the commercial
premises that the search is being made pursuant to the law and has a properly
defined scope, and it must limit the discretion of the inspecting officers.”
Burger, 482 U.S. at 703 (citations omitted). The statute or regulation must put
the owner on notice “that his property will be subject to periodic inspections
undertaken for specific purposes,” and “must be carefully limited in time, place,
and scope.” Id. (citations and quotation marks omitted).
We held a warrantless stop of a commercial trucker to be reasonable
under the closely regulated industry exception. See Castelo, 415 F.3d at 411.
The regulatory scheme was an adequate substitute for a warrant because the
statutes “provide[d] notice to commercial drivers that they may be subject to
random stops and inspections,” and the “scope of officer discretion” was
sufficiently limited as “only commercial vehicles may be stopped and
searched,” and only when “operating on a state highway . . . .” Id.
The statutes applicable to deer breeders provide notice that an
“authorized employee of the department may inspect at any time and without
warrant . . . any pen, coop, or enclosure holding . . . deer[.]” TEX. PARKS &
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WILD. CODE § 43.358(1). This statute satisfies the notice requirement. Even
where “statutes could have been more comprehensive and defined,” the notice
requirement is satisfied where they “permit an[] owner . . . to be aware that he
would be subject to warrantless” action. Fort, 248 F.3d at 482 (citing Burger,
482 U.S. at 703).
The statutes and regulations are also sufficiently limited in “time, place
and scope,” as they apply only to the breeder-deer industry; the officials may
inspect only a pen, coop, or enclosure holding breeder deer or records relating
to such enclosures; and the deer may be disposed of only after 30 days has
passed since the termination, revocation, or suspension of the deer breeder’s
permit. TEX. PARKS & WILD. CODE §§ 43.351, 43.358, 43.364; 31 TEX. ADMIN.
CODE § 65.612(c). It is true that Section 43.358 does not limit the time for
inspections. We agree with another panel of this court, though, that a statute
provides a constitutionally adequate substitute for a warrant where it was
limited in place and scope even if it permits inspections “as often as deemed
necessary.” Ellis v. Miss. Dept. of Health, 344 F. App’x 43, 45 (5th Cir. 2009)
(citation and quotation marks omitted).
Finally as to the closely regulated industry exception, the Andertons
claim Department officials exceeded the scope of the statutorily allowed
conduct under Club Retro L.L.C. v. Hilton, 568 F.3d 181 (5th Cir. 2009). In
Club Retro, forty deputy sheriffs, some “in full S.W.A.T. gear and black ski
masks,” went into the plaintiffs’ business with shotguns, assault rifles, and
pistols drawn. Id. at 191. Employees “thought that they were being robbed by
armed gunmen”; some were “thrown to the ground” and held “at gunpoint.” Id.
at 192. The deputies “searched every patron and employee” instructing some
women “to reach under their shirts, lift up their bras, and shake them so the
deputy sheriffs could see if any illegal drugs would fall out.” Id. The owners
of the club were “seized, assaulted, battered, and handcuffed” and “transported
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to a warehouse holding facility and held for over six hours.” Id. at 191. We
held that while the statutes “may have provided justification for an entry and
inspection of Club Retro,” they did not “permit[] the scope and manner of the
raid that plaintiffs allege occurred here.” Id. at 197.
There was no similarly excessive use of regulatory authority in the
present case. Department officials did what the statutes and regulations
authorized. They entered onto the Andertons’ property in order to dispose of
any breeder deer that remained on the land 30 days after expiration of the deer
breeder’s permit. Under the applicable closely regulated industry exception,
the warrantless search was not unconstitutional.
Once the Department officials were properly on the premises, their use
of their statutory authority to seize the deer was valid. The Fourth
Amendment generally prohibits warrantless seizures; however, the “plain
view” exception allows government officials to seize items where: “(1) the
[officials] lawfully entered the area where the item was located; (2) the item
was in plain view; (3) the incriminating nature of the item was ‘immediately
apparent;’ and (4) the [officials] had a lawful right of access to the item.”
United States v. Rodriguez, 601 F.3d 402, 407 (5th Cir. 2010) (quoting Horton
v. California, 496 U.S. 128, 136-37 (1990)).
The district court held the plain view doctrine applied to the warrantless
seizure of the deer because the deer were in plain view, the officials were acting
under constitutionally adequate state regulations when conducting the
inspection of the Andertons’ breeder deer, and the incriminating nature of the
deer was immediately apparent because the officials had probable cause to
believe the breeder deer were contraband. The Andertons argue the district
court’s holding was in error as it assumed facts not stated in the complaint.
It is true that the complaint contains few facts regarding the seizure. We
concluded above, consistent with the facts alleged in the complaint and the
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relevant law, that Department officials lawfully entered the Andertons’
property and had the right to kill the deer. The officials knew it had been more
than 30 days since the deer breeder’s permit had expired; thus, any deer
remaining on the Andertons’ land were there illegally. Lastly, the deer were
in plain view of the officials. Though the Andertons argue on appeal that many
deer “were obscured by tall grasses and trees,” the Department officials had
lawful access to the entire enclosure. Even if the deer were located in areas
obscured by tall grasses and trees, the officials were allowed to venture into
such areas and, once there, the deer would have been in plain view.
Because the requirements of the plain view doctrine are met, the
Andertons have failed to state a claim for violation of the Fourth Amendment
as to the warrantless seizure of the deer.
2. Fourteenth Amendment – Substantive Due Process
The Andertons also assert the defendants violated their substantive due
process rights by killing the deer. “To prevail on a substantive due process
claim, [a plaintiff] must first establish that it held a constitutionally protected
property right to which the Fourteenth Amendment’s due process protection
applies.” Simi Inv. Co., Inc. v. Harris Cnty., Tex., 236 F.3d 240, 249-50 (5th
Cir. 2000) (citations omitted). One recognized means of violating substantive
due process, and the one on which the plaintiffs rely, is for official conduct to
take life, liberty, or property in a manner that “shocks the conscience.” Conroe
Creosoting Co. v. Montgomery Cnty., Tex., 249 F.3d 337, 341 (5th Cir. 2001)
(citations omitted). The “burden to show state conduct that shocks the
conscience is extremely high, requiring stunning evidence of arbitrariness and
caprice that extends beyond mere violations of state law, even violations
resulting from bad faith to something more egregious and more extreme.” Doe,
675 F.3d at 868 (citation and quotation marks omitted). Official conduct
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“intended to injure in some way unjustifiable by any government interest,” is
the conduct “most likely to rise to the conscience-shocking level . . . .” Chavez
v. Martinez, 538 U.S. 760, 775 (2003) (citation and quotation marks omitted).
The Andertons argue the killing of the deer “shocks the conscience.”
Even if there were a protected property interest in the deer – an issue we will
analyze in the next section on procedural rights – Department officials were
acting pursuant to state law, not violating it. The Andertons failed to allege
facts that established the conduct of the officials was intended to injure them
unjustifiably. The district court stated that though the allegations “may raise
questions related to the most humane ways to kill deer, [they] do not plausibly
establish that the officials’ conduct was so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.”
The Andertons have failed to demonstrate a violation of substantive due
process under the Fourteenth Amendment.
3. Fourteenth Amendment – Procedural Due Process
A claim brought under Section 1983 for violation of procedural due
process rights under the Fourteenth Amendment requires identification of a
protected life, liberty, or property interest and a sufficient allegation that there
was a deprivation of that interest by the government. See Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010). State law is often the source of the benefit,
and the plaintiff must show a legitimate claim to an entitlement:
The procedural component of the Due Process Clause does not
protect everything that might be described as a “benefit”: To have
a property interest in a benefit, a person clearly must have more
than an abstract need or desire and more than a unilateral
expectation of it. He must, instead, have a legitimate claim of
entitlement to it. Such entitlements are, of course, not created by
the Constitution. Rather, they are created and their dimensions
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are defined by existing rules or understandings that stem from an
independent source such as state law.
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) (citations,
alterations, and quotation marks omitted). “[I]f government officials may
grant or deny [the interest] in their discretion,” the interest is not protected by
due process. Id. (citation omitted). “In determining whether statutes and
regulations limit official discretion . . . we are to look for ‘explicitly mandatory
language,’ i.e., specific directives to the decisionmaker that if the regulations’
substantive predicates are present, a particular outcome must follow.’” Ridgely
v. FEMA, 512 F.3d 727, 735-36 (5th Cir. 2008) (quoting Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 463 (1989)).
We find there to be official discretion in the relevant regulations. The
most important of the regulations begins with an obligation on individuals like
the Andertons: “An applicant for an initial deer breeder’s permit shall submit
the following to the department,” and then lists five categories of information.
31 TEX. ADMIN. CODE § 65.603(a)(1)-(5). The language that follows for the
Department’s response to the application is not one of obligation: “A deer
breeder’s permit may be issued when” the application, other documents, and
fees have been received. Id. § 65.603(b). For renewals, the regulation also
omits mandatory language: “Except as provided in subsection (g) of this
section, a deer breeder’s permit may be renewed annually, provided that the
applicant” has submitted a timely renewal application, filed an annual report,
paid the renewal fee, and is then in compliance with the statutory subchapter.
Id. § 65.603(d). The provision just noted as an exception is also permissive:
“The department may refuse permit issuance or renewal to any person who
has been” convicted or otherwise been found guilty, even if only receiving a
deferred adjudication, of violation of certain offenses under the Parks and
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Wildlife Code. Id., § 65.603(g). In all these provisions, the Department is given
discretion to decide whether the particular application should be granted.
The only mandatory language cited to us by the Andertons concerns the
issuance of the initial permit, not a renewal: “The department shall issue a
permit to a qualified person . . . .” TEX. PARKS & WILD. CODE § 43.352(a).
For a constitutionally protected property right to be created, there must
be a clear entitlement to the governmental benefit. 3 We have held that
statutory language such as “may provide financial assistance” or “may provide
continued housing assistance” was permissive, not mandatory, and did not
create a protected property interest. Ridgely, 512 F.3d at 736 (citations
omitted).
The Department relies both on the seemingly permissive language of the
regulations and the fact that the mandatory statutory language applies only to
a “qualified person.” Because the Andertons were not qualified, the
Department argues, no process was constitutionally due before denial of a
renewal or a new permit. This argument assumes the Department could
independently determine the Andertons were not qualified, and that the
Andertons were not entitled to any process to attempt to prove they actually
were qualified. The Andertons argue they were qualified because they were
not convicted of violating the Lacey Act but of conspiracy to do so. Regardless
of the validity of that argument, the Andertons were not given the opportunity
to make the argument to the Department in a permit-renewal process.
We do not rely on the question of whether the Andertons were qualified.
Instead, we conclude that because the relevant statutes and regulations do not
3 In a bankruptcy case cited to us, the issue was whether the then-existing permit was
property of the estate; it was. In re Wheeler, 431 B.R. 158, 160 (N. D. Tex. 2005). The court
did not discuss whether a permit was a protected property interest for due process purposes.
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require the Department to renew a permit even when an applicant timely
seeks one and is qualified, the Andertons had no property right to a renewal.
The Andertons also claim that the killing of the deer was a procedural
due process violation because they had a protected property interest in the deer
herd. Under Texas law, though, breeder deer belong to the state, not the
permittee. See, e.g., TEX. PARKS & WILD. CODE §§ 1.011 (“All wild animals . . .
inside the borders of this state are the property of the people of this state.”);
43.364 (“All breeder deer . . . are under the full force of the laws of [Texas]
pertaining to deer . . . .”). While a permittee may have possession of the
breeder deer, the deer are only “held under a permit[.]” Id. § 43.351. Nowhere
do the statutes or regulations state that breeder deer become the property of a
permit holder. 4 Regardless, even if they did give ownership of breeder deer to
permit holders, the Andertons were not permit holders when the deer were
killed.
Because the Andertons cannot claim a constitutionally protected
property interest in the deer herd, their procedural due process claim as to the
killing of the deer fails.
4. & 5. Opportunity to Replead
The Andertons argue the district court erred in two important respects
when it made rulings without offering the Andertons an opportunity to
replead. As their fourth appellate issue, they argue that the district court
dismissed in part on grounds the court raised on its own, and that they could
4 The Andertons argue that deer are not wild animals and therefore not owned by the state,
citing Wiley v. Baker, 597 S.W.2d 3, 5 (Tex.App. – Tyler 1980, no writ). Although the court
stated a person may have “[u]nqualified property rights in wild animals” when they are
“made subjects of man’s dominion,” it did so in the context of a conversion case between two
private parties. See id. at 5. The court was not addressing whether a person holding deer
pursuant to a deer breeder’s permit takes ownership from the state.
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have responded to the judicially identified inadequacies by repleading. As their
fifth issue, the Andertons claim error in the dismissal of their RICO claim
without an opportunity to replead.
Where there is a denial by the district court of a motion for leave to
amend, we review the decision for abuse of discretion. United States ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003)
(citation omitted). Leave to amend should be “given when justice so requires,
and should be granted absent some justification for refusal.” Id. at 386
(citation and quotation marks omitted). Federal Rule of Civil Procedure 15(a)
applies “where plaintiffs expressly request[] to amend” their complaint, though
a “formal motion is not always required . . . .” Id. at 387 (citations and
quotation marks omitted). When a party does not ask the district court for
leave to amend, it is not for this court to grant the unstated request. Id.
The Andertons never asked the district court for leave to amend their
complaint. They contend the district court should have offered an opportunity
to replead because it dismissed their Section 1983 and RICO claims on
different grounds than those raised by the defendants. In a case cited to us by
the Andertons, we reversed the district court’s sua sponte dismissal of claims
that the defendants had not moved to dismiss. See Davoodi v. Austin Indep.
Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014). Here, the defendants moved for
dismissal of each claim the district court dismissed. The plaintiffs’ argument
is without merit.
6. Declaratory Relief
The Eleventh Amendment bars suits against state officials “if the State
is the real party in interest.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir.
2013) (citation and quotation marks omitted). The state is the real party in
interest when the court’s decision “would operate against the sovereign,
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expending itself on the public treasury, interfering with public administration,
or compelling the state to act or to refrain from acting.” Hughes v. Savell, 902
F.2d 376, 378 (5th Cir. 1990) (citing, among other cases, Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 101 (1984)).
The Andertons argue they are entitled to pursue declaratory relief
against the Department officials in their official capacity to “establish that
Plaintiffs should have been issued a permit for possessing the breeder deer in
2010 and 2011 . . . and that they remain qualified persons entitled to a permit
. . . .” The state is the real party in interest as a decision in the Andertons’
favor would compel the Department itself to act. See id.; TEX. PARKS & WILD.
CODE § 43.352. Thus, the district court’s dismissal of the Andertons’ request
for declaratory relief was correct.
AFFIRMED.
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