Waldrop et al v. Colorado Department of Agriculture et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:25-cv-01194-CNS-NRN
REBECCA WALDROP and
ASHLAN WALDROP,
Plaintiffs,
v.
COLORADO DEPARTMENT OF AGRICULTURE, Division of Animal Welfare – PACFA,
NICK FISHER, in his official and individual capacity,
KATHRYN ROMERO, in her official and individual capacity,
THREE UNNAMED AGENTS OF THE ARAPHOE COUNTY SHERIFF’S OFFICE,
in their official and individual capacities,
TWO UNNAMED AGENTS OF THE COLORADO DEPARTMENT OF AGRICULTURE,
in their official and individual capacities,
ONE UNNAMED AGENT OF ARAPAHOE COUNTY ANIMAL SERVICES, in their official
and individual capacities,
Defendants.
ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Complaint [ECF #1]
Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). ECF No. 18. Plaintiffs Rebecca Waldrop and
Ashlan Waldrop responded, ECF No. 22, and Defendants replied, ECF No. 23. For the
following reasons, the Court GRANTS Defendants’ motion.
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I. 	BACKGROUND1
Plaintiffs bring this action under 42 U.S.C. § 1983 and Colorado law, alleging that
the Colorado Department of Agriculture (CDA), through its Pet Animal Care Facilities Act
(PACFA) division, and two of its employees, Defendants Nick Fisher and Kathryn Romero,
violated their Fourth Amendment rights.
On August 22, 2023, Defendant Romero obtained an administrative search
warrant authorizing inspection of Plaintiffs’ residence after receiving information that more
than fifteen dogs were housed there. See, e.g. ECF No. 1 (Compl.), ¶¶ 47, 49. The search
conducted extended into private bedrooms and bathrooms, forcing Plaintiff’s children to
wait outside during the search. ECF No. 1, ¶¶ 48–49. On the same day, Defendant
Romero issued a cease-and-desist order accusing Plaintiff Rebecca Waldrop of operating
an unlicensed pet facility. Id.
On 	April 	25, 	2024, 	Defendants 	Fisher 	and 	Romero 	executed 	a 	second
administrative search warrant at the same property to ensure the Plaintiffs had ceased
operating an unlicensed pet facility. Id., ¶ 54. Defendant Fisher directed Arapahoe County
Sheriff’s Office deputies to destroy the driveway chain leading into Plaintiffs’ driveway,
which was the chain on the gate to Plaintiffs’ yard. Id., ¶ 56. The deputies entered
Plaintiff’s home by destroying a window screen and window frame. Id. Once Plaintiffs
arrived home, Defendants Fisher and Romero forced Plaintiffs and their children to stay
outside for several hours as the search was conducted. ECF. No. 1, ¶ 58. Defendants
1 The background facts are taken from the well-pleaded allegations in Plaintiffs’ Complaint. See ECF No.
1; Porter v. Ford Motor Co., 917 F.3d 1246, 1247 n.1 (10th Cir. 2019). A brief summary of Plaintiffs’
allegations suffices.
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Fisher and Romero searched Plaintiffs’ home and briefly seized their electronic devices.
ECF No. 1, ¶¶ 56, 58–61.
Defendants move to dismiss, principally arguing that (1) the Eleventh Amendment
bars the claims against CDA and against Defendants Fisher and Romero in their official
capacities; (2) the Complaint fails to state a Fourth Amendment claim; and (3) Defendants
Fisher and Romero are entitled to qualified immunity in their individual capacities. ECF
No. 18. The Court considers these arguments in turn.
II. 	ANALYSIS
A. Subject Matter Jurisdiction and Eleventh Amendment Bar
1. 	Legal Standard for Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint
for “lack of subject matter jurisdiction.” A court lacking jurisdiction “must dismiss the case
at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.”
Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). The burden of
establishing subject matter jurisdiction is on the party asserting jurisdiction. See Pueblo
of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015).
2. 	Eleventh Amendment Bar to Exercising Jurisdiction
The Eleventh Amendment bars suits in federal court against a state or its agencies
unless the state has waived its immunity from suit or Congress has validly abrogated it.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“[Section 1983] does not
provide a federal forum for litigants who seek a remedy against a State . . . The Eleventh
Amendment 	bars 	such 	suits 	unless 	the 	State 	has 	waived 	its 	immunity.” 	(citation
modified)).
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Eleventh Amendment immunity is not absolute. One of the exceptions to Eleventh
Amendment immunity is the Ex parte Young doctrine, which allows federal courts to grant
prospective injunctive relief against state officials for ongoing violations of federal law. Ex
parte Young, 209 U.S. 123, 159–60 (1908); MCI Telcoms. Corp. v. PSC, 216 F.3d 929
(10th Cir. 2000). For the exception to apply, a plaintiff may bring suit against state officers
acting in their official capacities if the complaint alleges an ongoing violation of federal law
and the plaintiff seeks prospective relief. Muscogee Creek Nation v. Pruitt, 669 F.3d 1159,
1169 (10th Cir. 2012) (citing Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,
645 (2002)). The exception is narrowly construed and does not extend to allegations of
past conduct or speculative future harm. Puerto Rico Aqueduct & Sewer Auth. V. Metcalf
& Eddy, Inc., 506 U.S. 139, 146 (1993).
3. 	Analysis and Application of Legal Standard
Defendants first argue that the Court lacks subject matter jurisdiction of the claims
against the Colorado Department of Agriculture and Defendants Fisher and Romero in
their official capacities. ECF. No 18 at 5–8. Plaintiffs argue the Defendants “do not have
absolute 	immunity 	under 	the 	Eleventh 	Amendment,” 	and 	therefore 	there 	is 	no
jurisdictional obstacle to the Court’s consideration of their claims. ECF No. 22 at 6. The
Court agrees with Defendants’ argument that the CDA is an arm of the State of Colorado
and 	therefore 	immune 	from 	suit. 	The 	same 	immunity 	extends 	to 	claims 	against
Defendants Fisher and Romero in their official capacities because an official-capacity
claim is, in substance, a suit against the State itself. Hafer v. Melo, 502 U.S. 21, 25 (1991).
Resisting this conclusion, Plaintiffs point to allegations that Defendants continued
to make “ongoing threats” and “ongoing constitutional searches and seizures . . .” ECF
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No. 22 at 7; ECF No. 1, ¶¶ 77, 93. Plaintiffs rely on this “continuing threat” of future
searches to invoke Ex parte Young and establish jurisdiction. ECF No. 22 at 6. Certainly,
a threat of future warrantless searches can qualify as an ongoing violation of the Fourth
Amendment. See Community for Creative Non-Violence v. Unknown Agents of United
States Marshals Service, 797 F. Supp. 7, 14 (D.D.C. 1992). For instance, in Community
for Creative Non-Violence, the plaintiffs faced an imminent risk of unconstitutional,
warrantless intrusions by federal officers. Id. at 19 (“[B]ecause there is a real and
immediate threat that the Marshals Service will repeat its constitutionally impermissible
conduct, the Court will enjoin the Marshals from conducting warrantless [searches].”). Cf.
Satkowiak v. Marshall, 771 F.Supp.3d 937, 947 (E.D. Mich. 2025) (“[A]llegations of
possible future injury are not sufficient.” (citation modified)). In contrast, the searches
alleged here were conducted pursuant to valid administrative warrants issued by a neutral
magistrate under PACFA, and, even drawing inferences from the Complaint in their favor,
Plaintiffs allege only the possibility of similar warranted searches in the future. ECF No.
1, ¶ 77 (alleging PACFA “continues to express threat of legal action against R. Waldrop if
she keeps more than 15 dogs or cats in her home” (emphasis added)).
Further, to survive Defendants’ challenge Plaintiffs must show that the relief
requested is prospective in nature, such as injunctive or declaratory relief, rather than
retroactive monetary damages. See Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1213 (10th
Cir. 2022). Here, and bolstering the Court’s conclusion that it lacks the ability to exercise
jurisdiction over their claims, Plaintiffs are seeking compensatory damages for their claim
against the CDA and Defendants Fisher and Romero in their official capacities. See ECF
No. 1 at 23.
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Additionally, Defendants argue that Plaintiffs’ theory of ongoing harm based on the
assertion that PACFA should not apply to them raises a state-law dispute rather than a
federal constitutional issue and should be dismissed. ECF No. 23 at 3. Federal courts
may not instruct state officials how to conform their conduct to state law. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater
intrusion on state sovereignty than when a federal court instructs state officials on how to
conform their conduct to state law.”). See also Gorenc v. Klaassen, 421 F. Supp. 3d 1131,
1146 (D. Kan. 2019) (“The Ex parte Young exception does not apply to suits against states
and their agencies, which are barred regardless of the relief sought.” (citation modified)).
Thus, the Court agrees with Defendants that the Ex parte Young exception does not apply
to the claims asserted against them in their official capacities.
Moreover, the Court agrees with Defendants that to the extent Plaintiffs challenge
the validity of PACFA enforcement proceedings or orders issued by CDA, they were first
required to exhaust available administrative remedies under state law. ECF No. 18 at 6;
ECF No. 23 at 3. See, e.g., City and Cnty. of Denver v. United Air Lines, Inc., 8 P.3d 1206,
1212–13 (Colo. 2000). Reviewing Plaintiffs’ complaint confirms that Plaintiffs do not allege
that they pursued or completed such procedures. ECF No. 1. Their failure to exhaust
those remedies provides an additional basis for dismissal of the CDA and the official-
capacity claims under Rule 12(b)(1). Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.
2009) (holding the district court properly dismissed plaintiff’s claims because he failed to
exhaust his administrative remedies).
Because the alleged future harm depends on possible warrant-based enforcement
actions, not ongoing or imminent warrantless searches, Plaintiffs have not alleged an
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ongoing violation of federal law. The Ex parte Young exception therefore does not apply,
and the Eleventh Amendment bars Plaintiffs’ claims against the CDA and against
Defendants Fisher and Romero in their official capacities, leaving this Court with no
subject matter jurisdiction over Plaintiffs’ first claim. Ruiz v. McDonnell, 299 F.3d 1173,
1181 (10th Cir. 2002) (affirming the district court’s dismissal of plaintiff’s Section 1983
claims because of defendant’s Eleventh Amendment immunity, leaving the court with no
subject matter jurisdiction over those claims). The Court’s conclusion is bolstered by
Plaintiffs’ failure to exhaust, discussed above.
B. Fourth Amendment and Qualified Immunity (Individual Capacities)
Defendants move to dismiss on qualified immunity grounds Plaintiff’s remaining
claims against Defendants in their individual capacities. After laying out the governing
legal standard, the Court addresses this argument, ultimately agreeing with Defendants.
1. 	Legal Standard for Motion to Dismiss
Under Federal Procedure of Civil Procedure 12(b)(6), a court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Dismissal under
Rule 12(b)(6) is appropriate only if the complaint is implausible on its face. Mengert v.
United States, 120 F.4th 696, 711 (10th Cir. 2024) (citing Abdi v. Wray, 942 F.3d 1019,
1025 (10th Cir. 2019)). A claim is facially plausible if the plaintiff pleads factual allegations
that allow the court to draw the reasonable inference that the defendant is liable for the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In making this
determination, the “court accepts as true all well pleaded factual allegations in [the]
complaint and views those allegations in the light most favorable to the plaintiff.” Straub
v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018). However, “legal conclusions”
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contained in the complaint are not entitled to the assumption of truth. See Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
2. 	Qualified Immunity
Once, as here, a defendant asserts qualified immunity, the burden shifts to the
plaintiff to show that (1) the defendant’s conduct violated a constitutional right, and (2)
that the right was clearly established at the time of the alleged violation, such that every
reasonable official would have understood that the conduct constituted a violation of that
right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Explained below, Plaintiffs have not
met the burden of overcoming Defendants’ assertion of qualified immunity.
In this case, the first prong requires Plaintiffs to show that Defendants’ actions
amounted to a violation of the Fourth Amendment, resulting in an unreasonable search.
Estate of Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020). The second
prong requires Plaintiffs to establish that the constitutional right was clearly established
at the time of the incident, meaning that existing precedent, either from the Supreme
Court or the Tenth Circuit, must have “found the law to be as the plaintiff maintains.” Id.
If Plaintiffs fails to satisfy either prong, the defendant is entitled to qualified immunity,
shielding them from liability. Ashcroft, 563 U.S. at 735.
Plaintiffs 	fail 	to 	meet 	the 	first 	prong. 	Plaintiffs 	fail 	to 	sufficiently 	allege 	a
constitutional violation because both searches were conducted under valid administrative
warrants issued by a neutral magistrate. See, e.g., ECF No. 18, Exh. A.2 Cf. ECF No. 1,
2 The Court takes judicial notice of this document submitted in connection with Defendants’ dismissal
motion. See, e.g., Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023); St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).
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¶ 44 (alleging Defendant Romero “obtained an administrative search warrant” and that
the “warrant authorized a search”).
Even if Plaintiffs alleged a constitutional violation, they fail the second, clearly
established prong of qualified immunity. Plaintiffs cite no Supreme Court or Tenth Circuit
authority holding that executing a judicially issued administrative warrant under a state
regulatory statute violates the Fourth Amendment. ECF No. 1; ECF No. 22. The Supreme
Court has emphasized that clearly established law must be “particularized” to the facts
and that “general statements of the law” are insufficient. White v. Pauly, 580 U.S. 73, 79
(2017); Mullenix v. Luna, 577 U.S. 7, 12 (2015). Plaintiffs’ generalized assertion that
unreasonable 	searches 	are 	unconstitutional 	does 	not 	place 	the 	alleged
unreasonableness of PACFA inspections “beyond debate.” Ashcroft, 563 U.S. at 741.
For these reasons, Defendants Fisher and Romero are entitled to qualified
immunity as to the individual capacity claims. Accordingly, the Court need not address the
parties’ arguments as to the plausibility of Plaintiffs’ individual capacity claims.3 See, e.g.,
Liu v. Salt Lake Cmty. Coll., No. 2:21-cv-00608-CMR, 2025 WL 384615, at *8 (D. Utah
Feb. 3, 2025); Watkins v. Session, No. 19-60810-CIV, 2022 WL 16745386, at *9 n.12
(S.D. Fla. Nov. 7, 2022), aff’d, No. 22-14070, 2023 WL 8469704 (11th Cir. Dec. 7, 2023)
(“Defendants are entitled to qualified immunity, [so] we needn’t reach the merits of these
claims.” (citation modified)).
3 For the first time in their Response, Plaintiffs argue that their “Fourth and Fourteenth Amendment rights
are violated if officers make a false statement in an affidavit in support of a search warrant.” ECF No. 22 at
14. However, Plaintiffs made no such allegations in their Complaint, and the Court cannot consider
arguments in documents outside the Complaint as allegations. See, e.g., Alcohol Monitoring Sys. V. Actsoft,
Inc., 682 F.Supp.2d 1237, 1242 (D. Colo. 2010) (“[A] party generally may not raise an issue for the first time
in a reply brief.”). Moreover, arguments raised for the first time in a response are waived. See id.
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III. 	CONCLUSION
Consistent with the above analysis, Defendants’ Motion to Dismiss Plaintiffs’
Complaint [ECF #1] Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), ECF No. 18, is
GRANTED. Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE. Plaintiffs may,
should they choose to do so, and believe they can cure the above deficiencies in their
allegations, file an amended complaint within 14 days of this Order.
DATED this 10th day of February 2026.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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