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Baughman v. City of Elkhart

United States District Court, E.D. Texas, Tyler Division

March 27, 2018

TAMMY BAUGHMAN
v.
CITY OF ELKHART, TX, et al.

          MEMORANDUM OPINION AND ORDER

          K. NICOLE MITCHELL, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants City of Elkhart, Texas, Mike Gordon, Billy Jack Wright, Chris Sheridan, Beverly Anderson, and Carla Sheridan's Motion for Summary Judgment (ECF 51). The case was transferred to the undersigned with the consent of the parties in accordance with 28 U.S.C. § 636. For the reasons set forth below, the Court GRANTS the motion for summary judgment.

         BACKGROUND

         Plaintiff Tammy Baughman, proceeding pro se and in forma pauperis, filed this case on May 31, 2017 seeking relief pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3613. Pursuant to the Amended Complaint filed on August 2, 2017, the named defendants are City of Elkhart, Texas, Mike Gordon, Billy Jack Wright, Chris Sheridan, Beverly Anderson and Carla Sheridan.

         In her Amended Complaint, Plaintiff asserts that she is disabled as a result of failed back surgery, fibromyalgia, depression and other health issues. She states that she has owned a seven pound ring tail lemur for seven years. Plaintiff submits that the lemur is an emotional support and assistance animal that improves her quality of life. Plaintiff states that the lemur bit a rural mail carrier on December 5, 2012, leaving lacerations on the carrier's hand and wrist. Plaintiff alleges that the lemur was then quarantined for thirty days and returned to her. Plaintiff later moved to Elkhart, Texas, in December 2014. She submits that the lemur bit another individual on June 25, 2015. The lemur was again quarantined for thirty days and returned to Plaintiff.

         Plaintiff states that the City of Elkhart enacted an ordinance on October 5, 2015- ordinance 112-081307-that bans all non-human primates from the city. Plaintiff submits that she sought an accommodation from the City to keep the lemur as an emotional support animal but it was denied on April 4, 2016. Plaintiff alleges that Defendants Mike Gordon, Mayor Pro Tem, and City Council members Billy Jack Wright, Chris Sheridan and Beverly Anderson “showed deliberate indifference in refusing to give [her] a hearing to defend her lemur” in violation of the FHAA and the ADA. Plaintiff asserts that she called and spoke to Defendant Carla Sheridan, City Secretary, and told Sheridan that she would remove the lemur within two days. Plaintiff alleges that Code Enforcement officers came to her home on May 5, 2016 and asked to search her home when she would not tell them where she took the lemur. Plaintiff refused and was allegedly issued a citation. Plaintiff states that the citation was ultimately dismissed.

         On February 15, 2018, Defendants filed a Motion for Summary Judgment (ECF 51) seeking dismissal of all claims asserted by Plaintiff. Defendants assert that Plaintiff lives in a home in Elkhart and that she also operates a small retail resale shop out of her home. Prior to moving to Elkhart, Plaintiff's lemur was involved in two documented attacks on humans in Houston County, Texas, that resulted in injuries and periods of quarantine. One attack was on a mail carrier and another attack was on Plaintiff's son-in-law.

         After Plaintiff moved to Elkhart, an incident occurred on June 25, 2015 where the lemur jumped on Lucinda Washington, a customer in Plaintiff's store, and injured Ms. Washington's arm. Ms. Washington required stitches. She complained about the incident to the Anderson County Sheriff's Department. Deputy Jimmy Chambers from the Sheriff's Department investigated and determined that the lemur had been involved in previous attacks on humans. His investigation included talking to Plaintiff about the incident and about her lemur. Deputy Chambers notified Plaintiff that he would file paperwork in an effort to deem the lemur as “dangerous” pursuant to TEX. HEALTH & SAFETY CODE § 822.041. The lemur was quarantined to check for signs of rabies and Deputy Chambers reported Ms. Washington's complaint to the City Council. Deputy Chambers also suggested that Plaintiff could relocate her lemur to a wildlife reserve or zoo, but Plaintiff declined.

         The City later proposed an amendment to its City Animal Control Ordinance to prohibit individuals from keeping a vicious or an exotic animal within the city limits. The proposed amendment was discussed at the City Council meeting on October 20, 2015. Plaintiff appeared at the hearing and presented her opposition to the ordinance. The minutes from the October 20, 2015 City Council meeting summarize Plaintiff's statements to the City Council at the meeting:[1]

The Council heard testimony from Tammy Baughman regarding incidents with her pet lemur, Keanu. Ms. Bauman described how her daughter first saw Keanu at a party, dyed hot pink and being given alcohol. Ms. Baughman stated how she paid $100.00 to the person that owned Keanu to rescue him. Ms. Baughman also stated that her lemur is a family member. Ms. Baughman stated her lemur attacked the mail carrier and described the incident that he attacked the mail carrier and a couple of incidents that led up to the attack. Ms. Baughman also described an incident where her son-in-law was injured. According to Ms. Baughman with regard to the “Lucinda incident, ” as quoted by Ms. Baughman, Lucinda did nothing wrong. Keanu, the lemur, ran up her arm and wrapped his arms and legs around her arm, she tried to fling him off and was harmed in doing so. Ms. Baughman then made accusations regarding Sheriff Greg Taylor and his handling of the situation[].

         The City Council additionally heard from Anderson County Sheriff Greg Taylor at the meeting. Sheriff Taylor noted that animals are unpredictable and recommended the enactment of the ordinance as being in the best interest of the citizens of Elkhart.[2] Councilman Andrew Chavarilla noted that the animal is now a health and safety issue because he has attacked multiple humans.[3]When asked, Plaintiff acknowledged that her lemur has never been vaccinated for rabies.[4] The City Council then voted and the ordinance passed by a majority vote. Defendant Beverly Anderson abstained from the vote and Defendant Wright voted against passage of the ordinance. All other council members voted in favor of the ordinance. These facts alleged by Defendants concerning the events leading up to and including the passage of the ordinance are supported by the Affidavit of Mike Gordon, Mayor of Defendant City Elkhart, Texas, ECF 51-2, the Anderson County Sheriff's Office Offense Report, ECF 51-8, and the minutes of the October 20, 2015 City Council meeting, ECF 51-3.

         In relevant part, Ordinance 112-081307-1, approved and effective on October 26, 2015, states:

4.3 WILD OR VICIOUS ANIMAL: It shall be unlawful to keep, harbor, release or allow to run at large any animal(s) as defined in Section 1.4 or 1.6 of this Ordinance.
4.4 EXOTIC ANIMALS: It shall be unlawful to keep, harbor, release or allow to run at large any animal(s) as defined in Section 1.11 of this Ordinance.

See Defendants' Motion for Summary Judgment, ECF 51-5, at *4-5 (Exhibit 6). A vicious animal is defined in Section 1.6 as “[a]ny animal that commits an unprovoked attack upon a person on public or private property or that attacks, threatens to attack or terrorizes a person on public property or in a public place.” Id. at *1. An exotic animal is defined in Section 1.11 as “any non-human primate, skunk, jaguar, leopard, lynx, tiger, lion, panther, bear, coyote, venomous or non-venomous reptile, or any other carnivorous wild animal or reptile. Id. at *2.

         Some time after the ordinance was enacted, Plaintiff requested an accommodation to allow her to keep her lemur due to an emotional disability. Defendants assert that Plaintiff was provided an opportunity to present her position to City representatives, but she failed to identify a specific disability or health condition. Instead, Plaintiff described security measures she had taken to keep the lemur away from the public.[5]

         Plaintiff filed a complaint against the City of Elkhart, Texas, with Housing and Urban Development on December 9, 2015, alleging that the City of Elkhart, Texas, discriminated against her by failing to make a reasonable accommodation for her disability. The Civil Rights Division of the Texas Workforce Commission (“TWC”) completed an investigation and determined that there was no reasonable cause to believe that the City discriminated against Plaintiff on the basis of a disability or that a discriminatory housing practice occurred. The TWC written decision issued on April 15, 2016 concludes that the City was not unreasonable in denying Plaintiff's request for an accommodation as a result of the known history of the lemur injuring humans and the concern for the health, safety and welfare of the other citizens in Elkart.[6]

         In their motion for summary judgment, Defendants assert that the ordinance was enacted as a legitimate exercise of the City's legislative power and police power. Defendants submit that passage of the ordinance did not violate Plaintiff's substantive or procedural due process rights and does not deny equal protection under the law. Defendants also argue that there is no evidence showing that they engaged in a prohibited discriminatory housing practice in violation of the FHAA. Even if Defendants had taken action concerning Plaintiff's right to own, lease or occupy housing, Defendants assert that there is no evidence that Plaintiff submitted a request for a reasonable accommodation and the request would have been reasonably denied based upon the lemur's history of attacks. Finally, the individual defendants submit that they are entitled to absolute legislative immunity.

         Plaintiff filed a response on March 12, 2018. Plaintiff asserts that the FHAA gives her the right to have an emotional support animal and the Fourteenth Amendment of the United States Constitution gives her a right to due process. Plaintiff attached letters from a counselor and a psychologist stating that she has a mental health disability and that the lemur is important to her mental health.[7] Plaintiff submits that these letters prove that she asked the City for a reasonable accommodation. Although she was permitted to speak at the October 20, 2015 City Council meeting, Plaintiff complains that she was given a time limit, interrupted and not permitted to bring witnesses and show evidence to defend her lemur.[8] Plaintiff asserts that no ...


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