Full Case Name:  Renee Moore, Randall Moore, and Moore's Precious Puppies, Plaintiffs, v. Tracey Garner, et al. Defendants.

Share |
Country of Origin:  United States Court Name:  United States District Court, Eastern District of Texas, Tyler Division Primary Citation:  2005 WL 1022088 (E.D.Tex.) Date of Decision:  Saturday, January 1, 2005 Judge Name:  Steger Jurisdiction Level:  Federal Judges:  Steger Attorneys:  Renee Moore, Ben Wheeler, TX, pro se; Randall Moore, Ben Wheeler, TX, pro se; Moore's Precious Puppies, Ben Wheeler, TX, pro se; Robert Scott Davis, John Frederick Bufe, Potter Minton, Tyler, TX, for Defendants Docket Num:  Civ.A. 6:04CV79

Complaints were made against a plaintiff-couple about the poor conditions for over 100 dogs and other animals that were living in on the couple’s farm. The couple who owned the farm failed to do anything about it and the animals were seized.  Plaintiffs brought claims against sixty defendants (mainly Van Zandt County, Texas officials) for conspiracy and violations of the Hobbs Act, Animal Welfare Act, Animal Enterprise Protection Act, RICO, the Texas Constitution and other federal statutes.  The trial court granted defendants' motion to dismiss and the District Court affirmed. 

The above entitled and numbered civil action was referred to United States Magistrate Judge Harry W. McKee pursuant to 28 U.S.C. § 636. The Report of the Magistrate Judge which contains his proposed findings of fact and recommendations for the disposition of such action has been presented for consideration. No objections to the Report and Recommendation were filed. The Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the Report of the United States Magistrate Judge as the findings and conclusions of this Court.

Accordingly, it is

ORDERED Defendants' Motion to Dismiss the above entitled action is GRANTED (Doc. # 225).


Came on for consideration defendants Van Zandt County, Van Zandt County Sheriff's Office, Pat Jordan, Pat Burnett and Dwayne Collins make this motion to dismiss (Doc.# 225) pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6). After due consideration, this Court finds that the defendants' motion should be granted.


Plaintiffs kept over 100 dogs and other animals on a farm in Van Zandt County, Texas. After receiving many complaints concerning animal cruelty, the county constable, Pat Jordan, inspected the property and witnessed the allegedly poor conditions in which the animals lived. The constable warned the plaintiffs to improve the living conditions. On January 16, 2004, Justice of the Peace for Van Zandt County, Tracey Garner, signed a warrant for seizure of the animals, as it had been shown that the conditions had not improved. The animals were seized by the county and on January 21, 2004, Judge Garner held a trial on the matter. A judgment was entered stating that the animals should be placed into the custody of the Society for the Prevention of Cruelty to Animals (SPCA), and a $6,480.00 fine was levied against the plaintiffs. The plaintiffs did not appeal the judgment.

The instant case involves claims of a RICO conspiracy by approximately 60 defendants, including Van Zandt County, the Van Zandt County Sheriff's Office, Pat Jordan, Pat Burnett, and Dwayne Collins. Along with the conspiracy, the plaintiffs also generally claim that the defendants conspired to violate the Hobbs Act as well as violations of the Animal Welfare Act, the Animal Enterprise Protection Act, RICO, the Texas Constitution, and other federal statutes. After due consideration, the Court recommends that the defendants' motion to dismiss be granted.


Under Federal Rule of Civil Procedure 8(a), plaintiffs must set forth a short, plain statement of their claims in order that the defendants receive fair notice of the claims against them and the factual grounds upon which the claims rest. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1955). A complaint may fail under Rule 8(a) in two ways. First, a complaint may fail to "provide notice of the circumstances which give rise to the claim." Gen. Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 950 (5 th Cir.1999). Additionally, the complaint may fail "to set forth sufficient information to outline the elements of the claim or permit inferences to be drawn that these elements exist." Gen. Star, 173 F.3d at 950.

Furthermore, dismissal under 12(b)(6) provides that a party may, by motion or as part of its answer to any pleading, assert as a defense that the pleading fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A plaintiff's complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Xerox Corp. V. Genmoora Corp., 888 F.2d 345, 351 (5th Cir.1989), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

When considering a Rule 12(b)(6) dismissal, we construe the complaint liberally in favor of the plaintiff, taking all facts as true. See Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). "Even if it seems 'almost a certainty to the court that the facts alleged cannot be proved to support the legal claim,' the claim may not be dismissed so long as the complaint states a claim." Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir.1986)(quoting Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762 (5th Cir.1984); see also Edwards v. City of Houston, 34 F.3d 630 (5th Cir.1996). The mere fact that the standard is stringent does not suggest that it can never be met, but motions to dismiss for failure to state a claim are disfavored in the law and, therefore, a court will only rarely encounter circumstances that justify granting such a motion. Clark, 794 F.2d at 970; Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). Therefore, this court will affirm an order granting a 12(b)(6) motion to dismiss only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations. Holmes v. Texas A & M Univ. Sys., 145 F.3d 681, 683 (1998).


The plaintiffs' claims should be dismissed pursuant to both Federal Rules of Civil Procedure 8(a) and 12(b)(6). Under Rule 8(a), a plaintiff must allege actual wrongdoing on the part of the defendants. Without such allegations that to serve as bases for the claims, the plaintiffs' causes of action should be dismissed as insufficiently pled. Houston v. Mile High Adventist Academy, 846 F.Supp. 1449, 1454 (D.Colo.1994). In this case, the plaintiffs have not alleged specific acts of wrongdoing against these defendants. Instead, the plaintiffs rely on a large-scale conspiracy theory against these and over 50 other defendants. These types of claims are conclusory and fail as a matter of law as to all defendants. Guidry v. U.S. Tobacco Co., 188 F.3d 619, 632 (5th Cir.1999).

Moreover, the plaintiffs fail to state a claim up on which relief may be granted. In this case, the principle contention by the plaintiffs against the defendants involves a large-scale RICO conspiracy to commit "Animal Enterprise Terrorism," in violation of 18 U.S.C. § 43. However, the plaintiffs' RICO claims are wholly without merit and should be dismissed. The alleged act of "terrorism" was the seizure, pursuant to court order, of the plaintiffs' animals. Animal enterprise terrorism, as defined in the statute, occurs when a person makes a "physical disruption" to an "animal enterprise." The seizure of the animals is not "terrorism" as defined in the Act. In fact, the Act specifically excludes "any lawful disruption that results from lawful public, governmental ... reaction to the disclosure of information about an animal enterprise." See 18 U.S.C. § 43. In any case, nothing in the plaintiffs' complaint implicates these or any of the defendants in the animals' unlawful seizure.

An animal enterprise, in turn, is defined as a "commercial or academic enterprise that uses animals for food or fiber production, agriculture, research, or testing." Id. The plaintiffs operated their business solely in order to sell the animals as household pets. This is not the type of business contemplated by the statute. Therefore, even if the puppy mill qualified as an "enterprise," the seizure of the animals would not be considered the type of act that covered by the statute.

In addition, the plaintiffs allege a civil RICO claim under 18 U.S.C. § 1962. Under 18 U.S.C. § 1961 et seq., in order to state a valid claim under RICO, the plaintiff must allege four things: (1) conduct, (2) by an enterprise, (3) through a pattern, (4) of racketeering activity. See 18 U.S.C.1961 et seq. First, in order to constitute sufficient "conduct," the Act has set out various "predicate offenses," at least one of which must be alleged in order to invoke jurisdiction under RICO. Interstate Flagging, Inc. v. Town of Darien, 283 F.Supp.2d 641, 645 (D.Conn.2003). In this case, the only conduct identified by the plaintiffs is that the defendant Jordan issued a warrant and that Van Zandt County, Van Zandt County Sheriff's Department, and Sheriff Pat Burnett provided security for the conspirators and media defendants. However, this conduct, even if accepted as true, is not "animal enterprise terrorism" as defined in the Act. Still, even if it could constitute "animal enterprise terrorism," as found 18 U.S.C. § 43, animal enterprise terrorism is not a predicate offense under RICO. Therefore, it may not serve as the basis for a civil RICO claim. See 18 U.S.C. § 1961(1).

Even assuming that the plaintiffs had alleged a predicate act, however, they must additionally allege the existence of an "enterprise." Crowe v. Henry, 43 F.3d 198, 203 (5th Cir.1998). An enterprise is defined as "an ongoing organization, formal or informal" along with evidence of associates functioning as a "continuing unit." Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 440-41 (5th Cir.1987). Simply stating, as plaintiffs do in their complaint, that the defendants were part of some "enterprise" and conspired against them does not transform the defendants into an "enterprise" under the Act. In fact, the Fifth Circuit has said that plaintiffs must plead "specific facts, not mere conclusory allegations" in order to establish a RICO enterprise. Manax v. McNamara, 842 F.2d 808, 811 (5th Cir.1988). Therefore, the plaintiffs have failed to satisfy the "enterprise" requirement under RICO and their claim fails for this reason as well.

Still, even had the plaintiffs properly pleaded the other RICO requirements, a RICO claim must also allege a "pattern" of racketeering activity, consisting of at least two racketeering acts. Heller Fin. Inc. v. Gramco Computer Sales, 71 F.3d 518, 523 (5th Cir.1996). While the plaintiffs have not satisfied this initial pleading burden by alleging a "pattern," RICO too requires that the previous acts be "related" and pose a "threat of continued criminal activity." HJ Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 236, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). In fact, this "continued activity" requirement is the essence of a RICO claim. The plaintiffs have not pleaded either a "pattern" of criminal activity or activity that may pose a future threat. Therefore, these claims should be dismissed.

Finally, the RICO conspiracy claim must also fail. Under 1962(d), a plaintiff must specifically allege some sort of agreement to commit predicate racketeering acts. Crowe, 43 F.3d at 206. Considering the lack of specificity regarding the defendants' alleged conspiratorial actions in this case, and the fact that even the facts that were stated cannot give rise to a civil RICO suit, simply stating that the "defendants" conspired to participate in a racketeering scheme is far too vague and conclusory to sustain a 1962(d) claim and should be dismissed. Id.

Additional sections of the plaintiffs' complaint allege violations of several federal criminal statutes and the Texas constitution. These should also be dismissed, both because many of the statutes pleaded by the plaintiffs do not create private causes of action and because even if they did, they would not apply to the defendants in this case. 

For instance, the Animal Enterprise Protection Act does not itself create a private cause of action. Leatham v. U.S., 122 F.3d 1072 (9th Cir.1997). Even if it did, however, nothing that the plaintiffs allege against the defendants would implicate the statute.

Nor does the Hobbs Act create a private cause of action. Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999). Even if this statute did create such a cause of action, plaintiffs have not pleaded any conduct on behalf of the defendant that obstructed, delayed, or affected interstate commerce through robbery, extortion, or threats of physical violence--allegations that must be pleaded in order to invoke the Hobbs Act under 18 U.S.C. § 1951, et seq. Nor does the Animal Welfare Act create a private cause of action. Int'l Primate Protection League v. Inst. for Behavioral Res., Inc., 799 F.2d 934, 940 (4th Cir.1986). Even if it did, however, nothing in the plaintiffs' complaint asserts the elements required under this Act, and this claim must also be dismissed.

The plaintiffs also claim violations of 18 U.S.C. § 48(b) and 18 U .S.C. § 667. Section 48(b) prohibits depictions of animal cruelty for financial gain. Even if this statute could be applied to the defendants, however, it would only apply to the media defendants, not these defendants. Similarly, Section 667 prohibits theft of livestock. Even if these defendants are implicated in the seizure of the livestock, no set of facts pleaded by the plaintiff could be construed so as to transform the legal seizure of the animals pursuant to a court order into illegal "theft." For that reason, this claim must also be dismissed.

The plaintiffs have further attempted to invoke this Court's jurisdiction under 15 U.S.C. § 1 et seq, the Sherman Antitrust Act. In order to sustain a claim under the Sherman Act, a plaintiff must prove a conspiracy that effected a restraint of trade in the relevant market. Apani Southwest, Inc. v. Coca-Cola Ent., Inc. 300 F.3d 627 (5th Cir.2002). The plaintiffs must allege the relevant geographic market. Apani, 300 F.3d at 627. In regard to these defendants, the plaintiffs have failed to meet any of these requirements and their claims against this defendant should therefore be dismissed.

The plaintiffs also allege that the defendants conspired to violate the plaintiffs' civil rights. This is stated in the plaintiffs' complaint in which they allege that "ALL DEFENDANTS knew, or reasonably should have known, that the Plaintiff's Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment rights had been violated." See Plaintiff's Complaint P.99. In essence, the plaintiffs allege a violation of 42 U.S.C. § 1983, a federal civil rights statute.

However, in order to prove such a claim, the plaintiffs must show a violation of their constitutional rights by a person acting under the color of state law. Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir.1988). While it is possible to properly allege a § 1983 conspiracy, conclusory allegations do not suffice. Cole v. Brazos Cty., 981 F.2d 237, 246 (5th Cir.1993). In fact, in order to properly plead a § 1983 conspiracy between private people and public officials, the plaintiffs must additionally allege an agreement to deprive the plaintiffs of their constitutional rights. Slavin v. Curry, 574 F.2d 1256 (5th Cir.1978); Theis v. Smith, 676 F.Supp. 874, 876-77 (N.D.Ill.1988). In this case, the plaintiffs have offered only conclusory allegations and have not pleaded facts necessary to sustain a conspiracy claim. Therefore, these claims should be dismissed.

Furthermore, the plaintiffs' claims of a violation of Section 1985 should also be dismissed. A claim based on § 1985 must be motivated by class-based or racial animus. Taylor v. Brighton Corp. ., 616 F.2d 256, 266 (6th Cir.1980). Plaintiffs made no such class- or race-based accusations. Nor are there any facts pleaded that could sustain a charge of a conspiracy to violate § 1985. Therefore, these claims should too be dismissed.

The plaintiffs also attempt to claim violation of state constitutional rights under the Texas constitution, specifically Article I, §§ 8, 17, 18, and 19. However, there is no private cause of action under the Texas Constitution. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995). Therefore, these claims must also be dismissed.

Accordingly it is

RECOMMENDED that the defendants' motion to dismiss (Doc.# 225) be granted.

A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).

Share |