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Morales-Pena v. McMahon

United States District Court, D. Oregon, Medford Division

November 30, 2018

FERNANDO MORALES-PENA, SR., Plaintiff,
v.
GALE McMAHON; KLAMATH COUNTY ANIMAL CONTROL; KLAMATH HUMANE SOCIETY; CITY OF KLAMATH FALLS POLICE DEPARTMENT, Defendants FERNANDO MORALES, JR., Plaintiff,
v.
GALE McMAHON; KLAMATH COUNTY ANIMAL CONTROL; KLAMATH HUMANE SOCIETY; CITY OF KLAMATH FALLS POLICE DEPARTMENT, Defendants

          OPINION & ORDER

          Hon. Michael McShane United States District Judge.

         This matter comes before the Court on Defendants' Motions for Summary in Civil Nos. 1:16-cv-00012-MC and l:16-cv-00013-MC. These cases are essentially identical. They share the same Defendants, the same set of facts, common questions of law, and the parties are represented by the same counsel in both cases. Accordingly, the Court has determined that these cases will be most efficiently resolved on a consolidated basis.

         The Court heard oral argument on August 16, 2018, at which time the Court GRANTED the motions for summary judgment. This Opinion and Order is to memorialize those rulings.

         BACKGROUND

         Plaintiffs in these consolidated cases are Fernando Morales-Pena, Sr., and his son Fernando Morales, Jr. Plaintiffs lived together in the City of Klamath Falls in Klamath County, Oregon.

         Defendant Klamath County Animal Control ("KCAC") is a part of the Klamath County Sheriffs Office and enforces animal control laws. Klamath Defs. Ans. ECF No. 17. Defendant Gale McMahon ("McMahon") is an Assistant County Code Officer for Klamath County and a Special Deputy employed by KCAC. Id; Warren Decl. Ex. 6, at 6. ECF No. 22. Defendant City of Klamath Falls Police Department ("KFPD") is the municipal police department for the City of Klamath Falls, Oregon.[1] Klamath Defs. Ans. Collectively, the Court will refer to these public Defendants as the "Klamath Defendants."

         Defendant Klamath Humane Society ("KHS") is a non-profit corporation operating in Klamath County, Oregon. KHS Ans. ECF No. 15. KHS is not a governmental entity and has no ability to set municipal, county, or state policy. Barks Decl. ECF No. 24. KHS has a contractual relationship with the Klamath County government, under which KHS agrees to house and care for animals seized and taken into custody by KCAC. Id.

         I. The Investigation and Search

         On April 3, 2015, Katerina Sekavec contacted the police to report that she suspected Morales Jr. was engaged in cockfighting based on videos Morales Jr. had posted on Facebook. Bergstrom Decl. ECF No. 20. KFPD Officer Kiley Bergstrom was assigned to investigate Sekavec's allegations. Id.

         Sekavec showed Bergstrom a series of three videos that Morales Jr. had posted on his Facebook account. Bergstrom Decl. The videos depicted roosters fighting and Morales Jr. was visible in at least one of the videos. Id. Sekavec also showed Bergstrom a Facebook text message conversation in which Sekavec confronted Morales Jr. and accused him of illegal cockfighting. Id. Morales Jr. replied that the videos had been filmed in Mexico, after which Morales Jr. deleted Sekavec from his Facebook friend list. Id. Sekavec told Bergstrom that she did not believe that the videos had been filmed in Mexico because she recognized the Plaintiffs' residence in Klamath Falls in the background of one of the videos. Id.

         Bergstrom viewed the publically accessible portions of Morales Jr.'s Facebook profile. From those portions of the Facebook page, Bergstrom found pictures of Morales Jr. posing with roosters at his residence in Klamath Falls. Bergstrom Decl. Bergstrom also noted that Morales Jr. had "liked" the Facebook pages of a number of cockfighting groups. Id.

         Bergstrom and KFPD Officer Kameron Gordon then went to Plaintiffs' neighborhood. Bergstrom stood on a neighboring property with a view of Plaintiffs' residence and confirmed that it was Plaintiffs' house in the Facebook videos. Berstrom Decl. Ex. 1, at 9-10. Bergstrom could also see chicken coops in Plaintiffs' yard and could hear roosters crowing. Id. Gordon interviewed Plaintiffs' neighbors, who reported that they could hear roosters in Plaintiffs' yard. Id. at 10.

         Based on the results of her investigation, Bergstrom sought and received a search warrant for both Plaintiffs' residence and Morales Jr.'s Facebook profile to search for evidence of illegal cockfighting. Bergstrom Decl. Ex. 3; Duckler Decl. Ex. 1. ECF No. 26.

         On April 4, 2015, Bergstrom executed the search warrant at Plaintiffs' residence. Bergstrom Decl. Ex. 1, at 10. A number of other KFPD officers, KCSO deputies, KCAC Special Deputy McMahon, and Klamath County Deputy District Attorney Sharon Forster also participated in the search. Id. Prior to the execution of the search warrant, McMahon was not involved in the investigation, nor was he consulted in Bergstrom's search warrant application. McMahon Decl. ECF No. 21. Plaintiffs were both present when the warrant was executed. Bergstrom Decl. Ex. 1, at 10.

         During the search, officers seized a stuffed rooster, raffle paperwork, rooster boxing gloves, wingbands, and rooster medication. Bergstrom Decl. Ex. 1, at 6-8. Most notably, the officers discovered a set often knives known as "rooster gaffs," in Morales Sr.'s dresser. Id. at 8. Metal gaff blades are attached to roosters for use in cockfighting. Id. at 11, 15.

         The officers also seized twenty-eight roosters from Plaintiffs' home. Bergstrom Decl. Ex. 1, at 12. McMahon reported that most of the roosters were missing their waddles and combs. Id. at 15. Morales Jr. told police that one of the roosters had a broken beak "from getting in a fight with another rooster that was tied up." Id.

         Plaintiffs denied that they were engaged in breeding, raising, or training roosters for cockfighting. Plaintiffs claimed they raised the roosters only for competitive poultry shows and for sale to other individuals engaged in showing roosters. Bergstrom Decl. Ex. 1, at 14. During his interrogation, Morales Jr. told the officers that the gaffs were mementos and that Plaintiffs never put the gaffs on their roosters. Id. at 13. When questioned about the Facebook videos, Morales Jr. told officers that he "has the roosters fight so they can relieve stress." Id. At McMahon's request, Bergstrom presented Plaintiffs with an animal surrender form, which they refused to sign. Id. at 15. Plaintiffs were taken into custody and lodged at the Klamath County Jail on charges of illegal cockfighting. Id.

         McMahon called KHS to take custody of the seized birds pursuant to its contract with the county government. Barks Decl. KHS president Charlotte Barks and a KHS volunteer arrived at Plaintiffs' residence and transported the roosters to a KHS facility. Id. Prior to taking custody of the birds, KHS had no involvement in the investigation, nor was any KHS employee aware of Plaintiffs' rooster breeding operation. Id.

         II. Criminal Prosecution and Forfeiture Proceedings

         On April 9, 2015, a Klamath County grand jury issued indictments against Plaintiffs. Warren Decl. Ex. 3, 15-20 (Indictment of Morales Jr.); Ex. 4, at 14-19 (Indictment of Morales Sr.). ECF No. 22-1. The indictments charged each Plaintiff with twenty-nine counts of felony Cockfighting in violation of ORS 167.428. Plaintiffs pleaded "not guilty" to the charges.

         The first count of each indictment alleged that Plaintiffs "did unlawfully and knowingly possess gaffs, slashers or other sharp implements designed for attachments to a fighting bird with the [i]ntent that the gaff, slasher or other sharp implement be used in cockfighting[.]" Warren Decl. Ex. 3, at 15; Ex. 4, at 14. The remaining twenty-eight counts alleged that Plaintiffs "did unlawfully and knowingly own, possess, keep, rear, train, sell, advertise or otherwise offer to sell a fighting bird[.]" Warren Decl. Ex. 3, at 15-20; Ex. 4 at 14-19. The indictments were sought by the Klamath County District Attorney's Office and the only witnesses called to testify before the grand jury were KFPD Officers Bergstrom and Gordon. Id. McMahon was not involved in the charging decisions, nor was he called to testify before the grand jury. McMahon Decl. Similarly, no employee of KHS was involved in the charging decision and no KHS employee was called to testify before the grand jury. Barks Decl.

         On May 13, 2015, the Klamath County District Attorney filed motions for forfeiture of the seized and impounded roosters pursuant to ORS 167.347. Warren Decl. Ex. 3, at 23-26; Ex. 4, at 22-25. The motions ...


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