     Case: 13-11374      Document: 00512819664         Page: 1    Date Filed: 10/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-11374                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
HOPE KNAUST,                                                             October 29, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

CYNTHIA DIGESUALDO; DONOVAN FOX; DENISE SOFRANKO;
GREGORY PARHAM,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-1460


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant, Hope Knaust (“Knaust”), appeals the district court’s order
granting Appellees’, Cynthia Digesualdo, Donavan Fox, Denise Sofranko, and
Gregory Paraham (collectively referred to as “Defendants”), motion for failure
to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6),
dismissing Knaust’s Bivens claim against the agents of the United States




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      No. 13-11374
Department of Agriculture (“USDA”) after Defendants seized most of Knaust’s
exotic animal livestock.
                                             I.
         Knaust operates a USDA-licensed exotic animal business in Texas
known as the “Lucky Monkey.” In February 2010, Inspector Donovan Fox, an
agent with the USDA’s Animal and Plant Health Inspection Service (“APHIS”),
visited the business on a routine inspection and cited Knaust for violations of
several USDA regulations.           Specifically, Inspector Fox cited Knaust for
violations of the Animal Welfare Act (“AWA”) as codified at 7 U.S.C. § 2131 et
seq. 1       Over the next several weeks, APHIS agents conducted further
inspections and cited Knaust for additional violations. On March 4, 2010,
“USDA personnel” returned and produced a Notice of Intent to Confiscate
Animals signed by APHIS Regional Director Denise Sofranko. This document
contained a list of necessary fixes in order to avoid confiscation. The next day,
March 5, 2010, “USDA personnel” confiscated almost all of Knaust’s exotic
animals. 2
         Knaust brought her claims against four employees of the USDA under
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). 3 Knaust complains that
the agents violated her Fifth Amendment Due Process rights by (1) seizing her
property without providing a method for challenging the seizure and (2) not



         The AWA is a comprehensive regulatory scheme governing the interstate
         1

transportation, sale, and handling of certain animals. The purpose of this Act is to insure
the humane treatment of those animals. See 7 U.S.C. § 2131; See also 9 C.F.R. § 1 et. seq.
         As required for review of a Rule 12(b)(6) motion, we accept and state the facts as
         2

they are set forth in Knaust’s complaint.
        Knaust initially filed suit against the USDA. The district court dismissed this suit
         3

pursuant to Fed. R. Civ. P. 12(b)(1) because sovereign immunity barred suit against the
USDA. This order was not appealed. The district court allowed Knaust to amend her
complaint and assert this Bivens action.

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                                      No. 13-11374
allowing sufficient time to cure the cited violations prior to seizing her
property. The district court granted Defendants’ motion to dismiss under Fed.
R. Civ. P. 12(b)(6). The court concluded that Knaust failed to state a cognizable
Bivens action because her complaints were with the agency and not the agents.
                                             II.
       In deciding a Rule 12(b)(6) motion, all well-pleaded facts must be taken
as true and all inferences must be drawn in favor of the plaintiff. 4 This court
reviews de novo a district court’s dismissal for failure to state a claim. 5
                                            III.
       Knaust contends on appeal that the district court erred in concluding
that the Bivens claim was essentially against the agency and not the officers.
Additionally, Knaust argues that the exotic animal confiscation was
unconstitutional because she lacks an adequate post-deprivation remedy. 6
       Under Rule 12(b)(6), a claim is plausible if “the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” 7 “Under Bivens a person may sue a
federal agent [in her individual capacity] for money damages when the federal




       Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citation and internal quotation
       4

marks omitted).
       5   Id.
       6 Knaust uses the phrase “unconstitutional taking” several times in her brief to this
Court. We do not address her argument under the Takings Clause, however, because she
failed to raise this argument at the district court. See Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Disc. Ctr., Inc., 200 F.3d 307, 316-317 (5th Cir. 2000).
       7Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks
omitted).

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                                         No. 13-11374
agent has allegedly violated that person’s constitutional rights.” 8 The purpose
of the remedy “is to deter individual federal officers from committing
constitutional violations.” 9 “For a complaint alleging a recognized Bivens claim
to survive a motion to dismiss, the plaintiff ‘must plead that each Government-
official defendant, through the official's own individual actions, has violated
the Constitution.’” 10
       In charging the USDA with enforcement of the AWA, Congress explicitly
allowed the Secretary of Agriculture to “promulgate . . . rules and regulations
. . . to permit inspectors to confiscate or destroy in a humane manner any
animal found to be suffering as a result of a failure to comply with any
provision of [the AWA] or any regulation or standard issued thereunder . . . .” 11
The Secretary created an enforcement regulation allowing for the confiscation
of animals by APHIS agents in 9 C.F.R. § 2.129; part (a) of the regulation
states, in pertinent part:
       If an animal being held by a dealer, exhibitor, intermediate
       handler, or by a carrier is found by an APHIS official to be
       suffering as a result of the failure of the dealer, exhibitor,
       intermediate handler, or carrier to comply with any provision of
       the regulations or the standards set forth in this subchapter, the
       APHIS official shall make a reasonable effort to notify the dealer,
       exhibitor, intermediate handler, or carrier of the condition of the
       animal(s) and request that the condition be corrected and that
       adequate care be given to alleviate the animal's suffering or
       distress, or that the animal(s) be destroyed by euthanasia. In the
       event that the dealer, exhibitor, intermediate handler, or carrier
       refuses to comply with this request, the APHIS official may


       Hernandez v. United States, 757 F.3d 249, 272 (5th Cir. 2014) (internal quotation
       8

marks and citation omitted).
       9   Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).
       10   Air Sunshine, Inc. v. Carl, 663 F.3d 27, 33 (1st Cir. 2011) (quoting Iqbal, 556 U.S.
at 676).
       11   7 U.S.C. § 2146.

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                                 No. 13-11374
      confiscate the animal(s) for care, treatment, or disposal as
      indicated in paragraph (b) of this section, if, in the opinion of the
      Administrator, the circumstances indicate the animal's health is
      in danger.

      Knaust does not claim that Defendants acted outside of the regulatory
authority granted to them by the Secretary of Agriculture. Nor does Knaust
allege with particularity facts describing how each individual government
defendant, through his or her own actions, violated Knaust’s Fifth Amendment
Due Process rights. Instead, Knaust claims that the “USDA” and “USDA
personnel” confiscated almost all of Knaust’s exotic animals. Although the
factual allegations describe the role the individual defendants played in the
process leading up to the confiscation, Knaust’s complaint lacks any facts
claiming that Defendants had a role in the actual confiscation of her animals.
Knaust simply states that “USDA personnel” confiscated her animals.
      Moreover, Knaust fails to allege facts suggesting that Defendants had a
role in not providing her with a remedy to challenge the confiscation. The
Secretary of Agriculture and not the individual defendants are responsible for
creating the remedial scheme.
      Accordingly, the district court correctly held that Knaust “cannot avoid
dismissal by recasting [her] claims against the agency as a Bivens action.”
Knaust’s claims allege that the regulatory scheme Defendants are bound to
follow is unconstitutional, not that any individual act by Defendants is
unconstitutional. We are satisfied that Knaust has failed to state a cognizable
Bivens action.
                                      IV.
      Because Knaust fails to assert factual allegations showing how each
defendant, by his or her own individual acts, violated her constitutional rights,



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                             No. 13-11374
the district court’s judgment, dismissing Knaust’s Bivens action, is
AFFIRMED.




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