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Since certified immunity is not a readily available defense to an official-capacity fit, we conclude that Walsh, Nicholson, Hurn, and Mc, Kamey might not assert qualified immunity as a defense against match in their main capabilities. For the reasons stated below, we AFFIRM in part and REVERSE in part the district court's entry of summary judgment, and REMAND for more proceedings consistent with this viewpoint.
BACKGROUNDA. Jurisdiction * 2 Typically, the denial of summary judgment is a non-final order that can not be appealed under 28 U.S.C. 1291. More Discussion Posted Here of the denial of qualified resistance is acceptable under the collateral-order doctrine "only 'to the level that it turns on a problem of law.'"Quigley v. Tuong Vinh Thai, 707 F. 3d 675, 679 (sixth Cir.
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City of Detroit, 408 F. 3d 305, 309 (6th Cir. 2005))." [A] accused, entitled to conjure up a certified resistance defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record set forth a 'authentic' issue of truth for trial."Johnson v. Jones, 515 U.S.
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2151, 132 L.Ed. 2d 238 (1995 )." [A] n appellant's contention that the district court erred in finding a real problem of fact for trial is not the kind of legal concern which we may captivate on an interlocutory basis."Gregory v. City of Louisville, 444 F. 3d 725, 743 (6th Cir. 2006). Inappropriate arguments contesting whether an authentic concern of fact exists do not deprive this court of jurisdiction; "even where, as here, the accused makes 'impermissible arguments concerning conflicts of fact,' if the accused likewise raises the simply legal issue of whether the plaintiff's truths reveal that the defendant violated clearly established law, 'then there is an issue over which this court has jurisdiction.'"Quigley, 707 F. 3d at 680 (quoting Estate of Carter, 408 F. 3d at (310 )).
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Just like government authorities, we allow "personal parties to obtain interlocutory review of denials of qualified resistance."Brotherton v. Cleveland, 173 F. 3d 552, 559 (sixth Cir. 1999). Appropriately, we have jurisdiction over this appeal of the rejection of certified immunity. B. Factual Background, The plaintiff-appellee in this match is United Family pet Supply, Inc., ("Pet Supply"), a private corporation that owns multiple animal shops, including the Hamilton Place Shopping mall family pet shop at the center of this dispute ("the animal shop").
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708 (Nicholson Aff. at 18) (Page ID # 1639). Walsh and Nicholson observed "little to no proof of food or water for the young puppies"; "unhygienic conditions such as dried feces that was matted in the fur of the puppies"; "damaged and broken cages"; "puppies that appeared to be really lethargic and dehydrated," a few of whom were struggling to consume water; and "that the shop's interior temperature was considerably hotter than the Shopping center's open corridor area."R.
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at 16, 19) (Page ID # 1606, 1607); see likewise R. 708 (Nicholson Aff. at 16, 19) (Page ID # 1638, 1639). Walsh asked Hallman about the air conditioning system and was told that it had actually been broken for a number of weeks; Hallman had reported the problem to home offices, but she was unaware of when, or if, the a/c unit would be repaired.
707 (Walsh Aff. at 20) (Page ID # 1607). While cleaning up out the hamster cages, Hurn "found that there was a dead hamster in one of the plastic hamster homes. The hamster was stiff and the hair had fallen off its body."R. 671 (Hurn Aff. at 14) (Page ID # 1208).
Walsh observed a hamster with a large bite wound; Hallman reported that the animal had not been seen by a veterinarian. R. 8712 (Walsh Dep. at 155) (Page ID # 2815). Also Found Here testified that there was just one individual cleansing when they showed up at the shop which she was told that the next employee did not get here up until 10:00 a.
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R. 705 (Walsh Dep. at 327) (Page ID # 1566). Walsh did not see anyone offering water to the puppies when she showed up, and there was no evidence that food had been provided that early morning. R. 8712 (Walsh Dep. at 192) (Page ID # 2818). Walsh asked an Animal Supply worker when they normally fed the animals and was informed that they typically feed the animals when they show up, however the employees had gotten to 7:00 a.
and there was no food for the animals when the Mc, Kamey workers got here around one hour later on. Id. at 193 (Page ID # 2819). * 4 Walsh and Nicholson concluded "that the animals were struggling with the conditions in the Family pet [Supply] Shop which these conditions had persisted for an amount of time."R.
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The agreement between Mc, Kamey and the City of Chattanooga allowed Mc, Kamey workers to be commissioned as special cops officers of the city licensed to investigate animal neglect and ruthlessness complaints and to release citations. R. 702 (Agreement at 23) (Page ID # 1411112). Both Walsh and Nicholson were commissioned as unique authorities officers for the City of Chattanooga at the time of the occasions in this lawsuit.
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707 (Walsh Aff. at 4) (Page ID # 1604); R. 708 (Nicholson Aff. at 4) (Page ID # 1636). Hurn was not commissioned as a special cops officer. * 3 In the months preceding the incident that gave increase to this fit, Mc, Kamey received complaints about "animal disregard occurring and unhygienic conditions existing" at the family pet shop.
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707 (Walsh Aff. at 7) (Page ID # 1604). According to Steven Zerilli, the President of Animal Supply, Walsh and Nicholson checked out Family pet Supply on seven occasions between January and April 2010 and released just one caution; the caution included accessibility of treatment records for a canary. Another Point of View (Zerilli Aff.
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On May 11, 2010, Mc, Kamey released Pet Supply a license accrediting that the shop "has actually satisfied the requirements of the Code of the City of Chattanooga and is authorized by the Mc, Kamey Animal Solutions Division to run as an Animal Dealer in the City of Chattanooga."R. 693 (Family Pet Dealer License at 1) (Page ID # 1340).
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Walsh reported that Knight explained "incidents of animal overlook and abuse" at the shop, "consisting of a dead young puppy noted 'Fit for Sale' was packed in a refrigerator freezer with the employees' lunches, a damaged air conditioning unit, and a live hamster that [Family pet Supply manager Brandy] Hallman positioned in a garbage compactor."R.
at 10) (Page ID # 1605). Based upon this report, Walsh contacted the Tennessee Department of Agriculture, which implements state animal law, and asked whether the Department would assist in an examination of the family pet shop. Id. at 11 (Page ID # 160506). State Animal Health Service technician Joe Burns agreed to help Mc, Kamey with the examination.
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705 (Walsh Dep. at 314) (Page ID # 1553). Walsh later explained that her main issues that led to the decision to get rid of the dogs were: [T] hat the conditions in the store were extremely hot, that the animals were extremely listless, that they were not as responsive as young puppies would generally be, that the store itself, there were lots of poorly maintained cages where body fluids were going down from one puppy to another.
There were some animals that were panting. There were some that were simply, like their eyes were sunken, which is a symptom of dehydration. I seemed like they weren't receiving adequate hydration from the bottles that they were provided. R. 8712 (Walsh Dep. at 15657) (Page ID # 2816). Walsh spoke with Christopher Brooks, Animal Supply vice president, and described that she was going to eliminate the animals from the store.
707 (Walsh Aff. at 29) (Page ID # 1609). Pet Supply proceeded to submit an emergency petition for injunctive relief in Hamilton County Circuit Court to prevent the elimination of the animals and related records. R. 8717 (Animal. for Inj.) (Page ID # 297274). At 1:30 p. m., in the midst of the removal of the animals from the shop, a hearing was hung on the petition.
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R. 707 (Walsh Aff. at 32) (Page ID # 1610). Walsh reported that the judge specified that "he thought the City Code licensed Mc, Kamey to eliminate the animals from the shop which the statement demonstrated Mc, Kamey had great cause to get rid of the animals," and denied the request for a short-term restraining order.
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Walsh, Nicholson, and Burns went back to the store and continued removing the animals. The animals were placed in a Mc, Kamey truck with a/c and water, and were inspected by veterinarians. Two puppies needed immediate medical attention. R. 707 (Walsh Aff. at 35) (Page ID # 1611). Mc, Kamey staff members acquired the take info and medical records for the animals from Animal Supply workers.
671 (Hurn Aff. at 13) (Page ID # 120708). In total, the officers seized thirty-two young puppies and fifty-five exotic family pets. R. 707 (Walsh Aff. at 34) (Page ID # 1611). Another Point of View , Kamey staff members did not eliminate the reptiles" [b] ecause reptiles don't react severely to the heat that was present in the shop."R.