Christensen v. Quinn (45 F. Supp. 3d 1043, 2014)

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

KAREN E. SCHREIER, District Judge.

Pending are motions for summary judgment by all defendants. Plaintiff, Daniel Reed Christensen, opposes each motion, and separately moves for summary judgment against defendants Humane Society of the United States, Wayne Pacelle, Scottlund Haisley, Dr. Dawn Dale, Dr. Adam Bauknecht, United Animal Nations, Tiffani Landeen-Hoeke, Rosie Quinn, Second Chance Rescue Center, Jim Severson, Lara Cunningham, and Jay Ostrem.

BACKGROUND

Viewing the facts in the light most favorable to the nonmoving party and noting all disputes of material facts, the facts are as follows:

Christensen lives on a farm in Turner County, South Dakota. Some time before 2009, Christensen began breeding and selling dogs, both on his property and that of his son David and daughter-in-law Kelly.

Quinn is the founder of Second Chance Rescue Center (SCRC), a nonprofit corporation whose mission is to prevent cruelty to animals. During 2009, Quinn was also the executive director of SCRC. SCRC had a contract with Turner County to provide animal control services for Turner County. Adamson, Langerock, Overby, Schmeichel, and Van Hove were, at all relevant times, the county commissioners for Turner County. Landeen-Hoeke was the Turner County state’s attorney. Ostrem was a Turner County deputy sheriff. Nogelmeier was the Turner County Sheriff. Sever-son was an agent with the South Dakota Department of Criminal Investigation. Cunningham was a revenue agent with the South Dakota Department of Revenue.

HSUS is a national animal protection organization. Pacelle is the CEO of HSUS. In 2009, Haisley was the director of emergency services for HSUS. UAN is a private, nonprofit entity that organizes volunteers to provide temporary care for displaced animals. HSUS and UAN regularly coordinated on joint operations. Dr. Bauknecht is a veterinarian licensed in Wisconsin who worked for an animal shelter in Wisconsin and previously volunteered with UAN. Dr. Dale is a Sioux Falls veterinarian who works for Dale Animal Hospital. Dr. Dale also served as a member of the board of directors for SCRC.

In early 2009, Quinn received a report that Christensen was selling dogs over the internet without a sales tax license. Quinn reported this information to Landeen-Hoeke, who in turn passed the information on to Cunningham. Cunningham determined that Christensen did not have a state sales tax license and prepared a written notice informing Christensen that he was operating as a retailer without a license and had three days to obtain a license, commonly known as a three-day notice to quit. At Landeen-Hoeke’s request, Cunningham also prepared an affidavit so Landeen-Hoeke could charge Christensen with the misdemeanor offense of operating a business without a sales tax license.

Cunningham requested the assistance of Turner County law enforcement to act as an escort when she served the three-day notice. Severson, who was in the area working on a murder investigation, volunteered to accompany Cunningham. Os-trem and Deputy Sheriff Jared Overweg, who is not named as a defendant here, were responsible for serving an arrest warrant on Christensen for the misdemeanor charge. One of the law enforcement officials requested the presence of animal control at Christensen’s residence, although there is a factual dispute regarding which party requested animal control’s assistance.

On April 9, 2009, Cunningham drove to Christensen’s property to serve the three-day notice. She was accompanied by Sev-erson, Ostrem, Overweg, Quinn, and Dana Wigg, an animal control officer who is not a defendant in this matter. When the party arrived at Christensen’s property, a garage door was open and vehicles were present. When Christensen did not answer his door, Cunningham began to walk around the other buildings on the property to see if she could locate Christensen. During this time, Cunningham was accompanied by at least some of the other law enforcement officials, but it is unclear how closely the group stayed together.

When Christensen could not be located at his property, Cunningham and Severson decided to travel to David and Kelly Christensen’s property to see if Christensen could be found there. The rest of the party left Christensen’s property. After it became clear that no one was present at David and Kelly’s property, Cunningham and Severson returned to Christensen’s property and waited on the side of the road across from Christensen’s driveway for Christensen to return.

When Christensen returned, Severson notified Ostrem. At that time, Cunningham served the three-day notice on Christensen. Christensen gave Cunningham permission to enter his house for the purpose of examining his business records. Cunningham and Severson then left Christensen’s property to copy the records he provided. Ostrem arrested Christensen pursuant to the misdemeanor warrant and took Christensen in for booking. Christensen was released shortly thereafter. Subsequently, Christensen pleaded guilty to operating a business without a sales tax license, and he obtained a license within the three-day period.

In August 2009, Quinn received at least one complaint about a sick Weimaraner puppy that had been sold by Christensen. Based on that report, Quinn obtained a search warrant for David and Kelly Christensen’s property, where she believed the Weimaraners were located. She executed that warrant on August 27, 2009, accompanied by Wigg and Ostrem. No Weimaran-ers were located on David and Kelly’s property, and Ostrem noted that the health of the dogs present appeared adequate, although the living conditions observed were substandard. Quinn and Wigg also went to Christensen’s property on August 27, 2009, although the record is in dispute as to how long they were on Christensen’s property or what they did while they were there.

Based on the conditions observed at Christensen’s property on April 9 and at both properties on August 27, Quinn decided to apply for search and seizure warrants for both properties. Quinn sent the draft affidavits in support of the warrant applications to Landeen-Hoeke for review. Landeen-Hoeke instructed Quinn to omit information from the warrant applications that had been obtained on April 9. The warrant applications also did not contain information that had been observed on August 27 at David and Kelly’s property and at Dan Christensen’s property.

On the morning of September 2, 2009, Quinn, Wigg, and Landeen-Hoeke appeared before State Circuit Court Judge Tim Bjorkman. Judge Bjorkman granted the search and seizure warrant for David and Kelly’s property, but denied the application for Christensen’s property. Judge Bjorkman allowed Quinn to testify, but again denied the warrant application. Landeen-Hoeke asked Judge Bjorkman if he would consider additional evidence observed by Quinn when she walked around Christensen’s property. After Judge Bjorkman said he would consider that evidence, Landeen-Hoeke and Quinn stepped out of the courtroom briefly. When they returned, Quinn testified about her observations from April 9. After hearing the additional information, Judge Bjorkman issued the search and seizure warrant for Christensen’s property.

In the days leading up to September 2, 2009, Quinn reached out to HSUS for assistance in removing what she anticipated to be a large number of dogs from both properties. HSUS arranged for a team, led by Haisley, to assist Turner County law enforcement with the search and seizure warrants. UAN, which frequently partnered with HSUS on such operations, arranged to have some volunteers present to care for the dogs once they were removed. Temporary housing for the dogs was set up at the Turner County Fairgrounds.

After Judge Bjorkman issued the two search and seizure warrants, Quinn, Os-trem, and the HSUS team proceeded to David and Kelly’s property. Once all the dogs were removed from that property, the team moved to Christensen’s property. In all, 173 dogs were seized from both properties and transported to the Turner County Fairgrounds, where volunteers examined each animal. HSUS filmed its activities at the properties and the fairgrounds.

Subsequently, a grand jury indicted Christensen on 173 counts of inhumane treatment of an animal. While the criminal charges were pending, some of the dogs seized from Christensen died, while others were adopted or placed in foster care. After a suppression hearing, State Court Magistrate Judge Tami Bern ruled that Quinn misled Judge Bjorkman when requesting the September 2 warrants and ordered the evidence from the warrants suppressed. Subsequently, the criminal charges against Christensen were dismissed on July 2, 2010. Docket 73-5.

After the criminal charges against him were dismissed, Christensen filed this suit, alleging a conspiracy to commit various constitutional violations and other state-law causes of action. According to Christensen, the defendants conspired to (1) illegally search his property on April 9, 2009; (2) illegally seize his property and deprive him of his due process rights on September 2, 2009; (3) commit the torts of malicious prosecution and intentional infliction of emotional distress; (4) violate the South Dakota Animal Enterprise Protection Act; and (5) engage in conduct amounting to criminal trespass and intentional damage to private property. See Docket 133 (amended complaint). All defendants have moved for summary judgment, and Christensen has also moved for summary judgment against some, but not all, defendants.

LEGAL STANDARD

Summary judgment is appropriate if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celo-tex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To avoid summary judgment, “[t]he nonmov-ing party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir.2005) (quoting Kre-nik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995)).

Summary judgment is precluded if there is a factual dispute that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

DISCUSSION

I. FEDERAL CLAIMS

A. Official Capacity Claims

1. Cunningham and Severson

The Eleventh Amendment generally bars suits for damages against a state or state officials in their official capacities unless the state waives its sovereign immunity. See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). To support his official capacity claims against Sever-son, Christensen asserts that the state could be liable for failure to train Sever-son, or for deliberate indifference to Sever-son’s allegedly poor job performance indicated by inmate suits and past credibility questions, Severson’s aggressiveness, and the fact that Severson took time off from a murder investigation to assist with-the service of a three-day notice. Docket 367 at 53-57. Christensen contends that those facts create “a jury question as to whether Severson qualifies for 11th Amendment protection.” Docket 367 at 57.

Immunity from suit is a question of law for the court, not a question of fact for a jury to decide. See, e.g., Lopez v. Mendez, 432 F.3d 829, 835 (8th Cir.2005) (discussing sovereign immunity); Entergy Ark., Inc. v. Nebraska, 358 F.3d 528, 556 (8th Cir.2004) (“Whether a state has waived its sovereign immunity is a question of law which we review de novo.”). Christensen fails to address how South Dakota waived its immunity under the Eleventh Amendment. The cases cited by Christensen deal with liability for supervisors or for local governments, not state governments. Because there is no evidence that South Dakota has consented to suit, Severson is entitled to summary judgment on Christensen’s official capacity claims.

Furthermore, neither a state nor its officials acting in their official capacities are “persons” who may be sued for money damages under § 1983. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Will, 491 U.S. at 71, 109 S.Ct. 2304; McLean v. Gordon, 548 F.3d 613, 618 (8th Cir.2008). The only relief requested by Christensen is money damages. Docket 133 at 29-30. Accordingly, Christensen’s official capacity claims against Severson for money damages also fail because Severson, in his official capacity, is not a proper party under § 1983.

The amended complaint asserts claims against Cunningham in both her individual and official capacities. Christensen concedes, however, that there is no evidence to support a claim against Cunningham in her official capacity. Docket 367 at 54. Thus, Cunningham is entitled to summary judgment with regard to the claims alleged against her in her official capacity.

2. Adamson, Langerock, Overby, Schmeichel, Van Hove, Landeen-Hoeke, Nogelmeier, Ostrem, and Turner County

Christensen alleges that Turner County, the Turner County Sheriff, a deputy sheriff, the Turner County state’s attorney, and the Turner County Commissioners also participated in the conspiracy to deprive him of his Fourth Amendment rights. To subject the county defendants to liability in their official capacities, Christensen must show that the constitutional violations alleged stemmed from an unconstitutional policy or custom. See Hafar v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, ‘the entity’s ‘policy or custom’ must have played a part in the violation of federal law.’ ” (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985))). “Assuming the existence of an unconstitutional [government] custom, a § 1983 claimant cannot recover unless the claimant also proves that the custom caused the resulting injury.” Ricketts v. City of Columbia, Mo., 36 F.3d 775, 779 (8th Cir.1994). ‘“[I]t is when execution of a government’s policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983.’ ” Id. (alterations and emphasis retained) (quoting Monell v. New York City Dep’t of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1977)).

Christensen points to the following policies or customs of Turner County: the contract with SCRC giving Quinn the powers of a peace officer based on a repealed statute; Nogelmeier’s policy of turning all animal control cases over to Quinn; and the policy or custom of giving Landeen-Hoeke too much power and the failure to remove her from office. See Docket 443 at 28 (contract with SCRC); id. at 29 (Nogel-meier’s practice of allowing Quinn to handle the case); id. at 30-31 (Landeen-Hoeke’s employment).

First, Christensen has failed to show that the allegedly unconstitutional policies are actually unconstitutional. The fact that the legislature repealed the statute upon which the contract between Turner County and SCRC was based calls into question the validity of the arrangement between the county and SCRC, but it does not implicate the federal constitutionality of the arrangement. Second, Christensen provides no support for the proposition that Nogelmeier’s policy of allowing a private party with a government contract to investigate animal cruelty or neglect cases is unconstitutional. See, e.g., Filarsky v. Delia, — U.S.-, 132 S.Ct. 1657, 1665-66, 182 L.Ed.2d 662 (2012) (“Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals.”). Third, even if Lan-deen-Hoeke is the inept official Christensen alleges, it would not be unconstitutional for Turner County to employ her.

Furthermore, Christensen fails to show any of the alleged policies to be the cause of a violation of his Fourth Amendment rights. Even if the facts relating to the alleged conspiracy are true, the source of Christensen’s harm is not any of the policies that he claims are unconstitutional, but rather the source of his harm is the conduct of the individuals. Additionally, Christensen fails to identify evidence of similar prior behavior amounting to a custom by any of these officials. Because Christensen cannot show that the policies he alleges as the bases for the county defendants’ liability are unconstitutional or that the policies themselves inflicted the injury he claims to have suffered, the county defendants are entitled to summary judgment on the official capacity claims brought against them.

B. Individual Capacity Claims

Section 1983 provides a cause of action against any “person who, under the color of any statute, ordinance, regulation, custom, or usage, of any state” causes the deprivation of a right protected by federal law or the United States Constitution. 42 U.S.C. § 1983. In this case, Christensen alleges that the defendants conspired to deprive him of his constitutional rights. “To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff must show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.” Askew v. Millerd, 191 F.3d 953, 957 (8th Cir.1999). A plaintiff “is additionally required to prove a deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy claim.” Id.

A conspiracy may be, and often is, shown by circumstantial evidence. See Small v. McCrystal, 708 F.3d 997, 1010 (8th Cir.2013). “ ‘The question of the existence of a conspiracy to deprive the plaintiffs of their constitutional rights should not be taken from the jury if there is a possibility the jury could infer from the circumstances a ‘meeting of the minds’ or understanding among the conspirators to achieve the conspiracy’s aims.’ ” Id. (quoting White v. McKinley, 519 F.3d 806, 816 (8th Cir.2008)). Nonetheless, “ ‘[a] party may not cry ‘conspiracy’ and throw himself on the jury’s mercy.... There must be a genuine issue about a material fact[.]’ ” Mershon v. Beasley, 994 F.2d 449, 452 (8th Cir.1993) (quoting Gramenos v. Jewel Companies, 797 F.2d 432, 436 (7th Cir.1986)). “To advance past the summary judgment stage, [a plaintiff] must ‘allege with particularity and specifically demonstrate material facts that the defendants reached an agreement.’ ” Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 582 (8th Cir.2006) (quoting Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir.1995)).

1. Count II

Count II álleges a violation of Christensen’s Fourth Amendment rights. According to Christensen, defendants Severson, Nogelmeier, Ostrem, Cunningham, Adam-son, Langerock, Schmeichel, Van Hove, Quinn, SCRC, and Turner County conspired to deprive Christensen of his Fourth Amendment rights when they served the three-day notice and arrest warrant on Christensen on April 9, 2009.

a. Fourth Amendment Protection

Before addressing whether any defendant is entitled to qualified immunity on Count II, the court will examine whether Christensen can show a Fourth Amendment violation on April 9, 2009. See Askew, 191 F.3d at 957 (requiring a plaintiff to show a deprivation of a constitutional right or privilege).

i. Christensen’s House

The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). A Fourth Amendment violation occurs when an officer commits an unlicensed physical intrusion into a protected area or violates a person’s reasonable expectation of privacy. See id. at 1417 (“The Katz [v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ] reasonable-expectations test ‘has been added to, not substituted for’ the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.” (italics in original) (quoting United States v. Jones, — U.S.-, 132 S.Ct. 945, 951-52, 181 L.Ed.2d 911 (2012))).

Christensen identifies evidence that at least some of the officers came up to his house before walking around his property. See Docket 369-3 at 3 (stating that Cunningham knocked on the door to Christensen’s house on April 9, 2009). But approaching a house and knocking on a door does not violate the Fourth Amendment. See Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1416, 185 L.Ed.2d 495 (2013) (“Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’ ” (quoting Kentucky v. King, — U.S.-, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011))); Nikolas v. City of Omaha, 605 F.3d 539, 545-46 (8th Cir.2010) (“It is clear that, without a warrant, Benson could enter the property through its open gate and proceed up the driveway to the front door of the main residence.... Likewise, viewing the exterior of the garage while proceeding up the driveway required no warrant.”). Furthermore, Christensen does not identify any evidence that any official intruded on his home itself beyond approaching the door and knocking. See Docket 369-12 at 7-8 (testifying that when Christensen did not answer his door, the group looked around the outbuildings for Christensen but never went behind his house). Christensen also does not contend that Cunningham’s presence in his house or inspection of his business records, both of which took place after Christensen was home and with his consent, violated the Fourth Amendment. See Docket 369-3 at 6-7 (stating that Christensen consented to law enforcement entering his house and inspecting his business records). Because no Fourth Amendment violation took place at Christensen’s home itself, the court must determine whether the other buildings on Christensen’s property enjoy Fourth Amendment protection.

ii. Curtilage

The Fourth Amendment protects a person’s home and the area immediately around it to which “the intimate activity associated with the sanctity of a man’s' home and privacies of life” extend. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). This protection, however, “does not extend past the curtilage. Officers are permitted to enter a resident’s property to observe buildings located outside the home’s curtilage.” United States v. Gerard, 362 F.3d 484, 487 (8th Cir.2004). Property outside the curtilage does not enjoy Fourth Amendment protection, and society does not recognize-a reasonable privacy interest in open fields. Oliver, 466 U.S. at 179-80, 104 S.Ct. 1735. Accordingly, to demonstrate a violation of his Fourth Amendment rights, Christensen must show that the areas entered by the government agents on April 9, 2009, were part of the curtilage of his home.

It is unclear whether a curtilage determination is a factual or legal question. Following the Supreme Court’s decision in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), several circuits have treated curtilage determinations as legal conclusions and have applied de novo review. See, e.g., United States v. Cousins, 455 F.3d 1116, 1121 (10th Cir.2006) (collecting cases). Although the Eighth Circuit has applied clear error review to curtilage determinations at least twice post-Ornelas, it has recognized a potential conflict between clear error review and Ornelas. See United States v. Bausby, 720 F.3d 652, 655-56 (8th Cir.2013); United States v. Wells, 648 F.3d 671, 675-76 (8th Cir.2011) (“[W]ere we the first panel of our court to review a district court’s curtilage determination post-Ornelas, we might well hold that de novo review applies to such determinations. But we are not the first.... Having acknowledged the conflict in our holdings, it is not within our power to resolve it. Nor would resolution of that conflict affect the result in this case.”). Similarly, the outcome in this case does not depend on whether a curtilage determination is a question of law or fact. There are no genuine factual disputes that might impact whether the buildings in question are part of the curtilage of Christensen’s home.

To decide whether outbuildings are part of the curtilage, a court should consider “the proximity of the buildings to the farmhouse, whether the farmhouse and [buildings] are within the same enclosure, the nature and uses of the [buildings] and the steps [Christensen] took to protect the [buildings] from being seen by others.” Gerard, 362 F.3d at 487 (citing United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). “[T]hese factors are not applied mechanically or in isolation....” Id. at 488.

The buildings surrounding Christensen’s home are various distances from Christensen’s house itself. See Docket 174-9 at 9 (listing distances). The measured distances range from 18.5 feet to 284 feet. Id. But distance alone is not determinative. Gerard, 362 F.3d at 487 (“The distance alone, however, is not determinative that [a building] should be treated as an adjunct of the house.”). Similarly, some of the buildings are located on the same side of the driveway as the house but outside of what appears to be a small yard, while others sit across the driveway from the house. See Docket 337 at 21. Significantly, Christensen emphasizes that the buildings were separated from the house by chain-link fences. See Docket 367 at 37-40 (arguing that the outbuildings were enclosed to prevent intrusion); Docket 369-17 (showing two barns separately enclosed by chain-link fences).

Pictures of the outbuildings demonstrate that the buildings on Christensen’s property (1) were separated from the home by chain-link fences and kennels that contained dogs, debris, and water dishes containing discolored and dirty water; (2) were surrounded by overgrown vegetation and in some instances large amounts of dog feces; and (3) were boarded up where windows had once been but contained holes through which dogs could pass from the interior of the building to the kennels. See Docket 351-4 (showing the kennels and overgrown vegetation outside one of Christensen’s buildings); Docket 419-1 at 1-4 (showing buildings surrounded by chain-link kennels, overgrown vegetation, and dog feces, and showing covered windows and holes in the sides of buildings); Docket 419-3 at 6 (showing a large amount of feces and mud surrounding a building); Docket 430-1 (showing a dog skeleton outside one of the buildings). Additionally, Christensen designates as evidence videos shot by HSUS personnel that further illustrate the state of the outbuildings on Christensen’s property. See Docket 361— 28, scene 10 (depicting conditions); scene 11 (same); scene 13 (same); scene 16 (same); see also United States v. Mooring, 137 F.3d 595, 597 (8th Cir.1998) (“After seeing a video tape of the barn’s interior, the district court noted ‘that a picture is worth a thousand words,’ and the video confirmed the barn was not associated with the Moorings’ domestic life.”). In fact, Christensen himself argues that the condition and structure of the buildings should have indicated to any reasonable officer that Christensen was not inside, indicating that the use of the buildings was not consistent with human presence. See Docket 367 at 7 (discussing finding a dead rat behind one of the “rickety” doors); id. at 43 (“Given that Cunningham also claims she couldn’t even figure out how [Christensen] could have entered the building and have managed to shut the rickety door behind him so that it stayed shut in the manner in which Cunningham and Sever-son found it, makes any claim that Sever-son and Cunningham were legitimately looking into the building in order to locate Christensen preposterous.”).

In considering the steps Christensen took to protect the buildings from observation, the buildings are set off from the highway by a row of trees, but they would be visible from the driveway as a visitor approached the house. See Docket 337 at 21. “The fact that one’s view from the road of the [buildings at issue] is obscured by the trees does not itself establish that [those buildings] should be included within the farmhouse’s Fourth Amendment protection.” Gerard, 362 F.3d at 488. Although they are surrounded by chain-link fences, such fences do not limit visual observation and offer little protection from inspection. See United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (“[A] chain-link fence does little to assert a privacy interest (as opposed to property interest) in details visible from outside the fence.”). In some instances it would have been possible to peer into the interior of the buildings through holes. See, e.g., Docket 419-1 at 1-4 (showing holes).

After weighing the four Dunn factors, the court concludes that the outbuildings on Christensen’s property were not part of the curtilage of his home. Although some of the buildings were close to the home, some were a great distance. The buildings were separately enclosed by fences, which set them off from the house itself. Overall, the layout of Christensen’s property weighs in favor of a finding that the buildings are not part of the curtilage of his house. The buildings were also not protected from public view. Although they would not have been easily visible from the road bordering Christensen’s property, they would have been visible from the driveway, where any member of the public might stand. The fences would not have obstructed one’s view of the buildings, and the interiors would have been visible to anyone who could approach and look through one of the holes.

The most persuasive factor, though, is the nature and use of the buildings. Their appearance makes it clear that the buildings were not associated with domestic activities of an intimate or private nature. They were fenced off, surrounded by overgrown vegetation, dilapidated, unlit, and in several cases were surrounded by large amounts of waste. The state of these buildings is inconsistent with “the intimate activity associated with the sanctity of a man’s home and privacies of life.... ” See Oliver, 466 U.S. at 180, 104 S.Ct. 1735. Therefore, the outbuildings on Christensen’s property are not part of the curtilage of his home and do not share the home’s Fourth Amendment protection.

iii. Objectively Reasonable Expectation of Privacy

Christensen contends that even if the buildings on his property were not part of the curtilage of his house, they were still protected by the Fourth Amendment because he had a reasonable expectation of privacy. See Docket 367 at 37-40. Property, even private property, outside the curtilage is generally considered an “open field,” which enjoys no Fourth Amendment protection. See Oliver, 466 U.S. at 178-80, 104 S.Ct. 1735. “But the open fields doctrine only allows a search of what is in plain view in-the open field. It does not justify a warrantless search of a man-made enclosure found in an open field.” United States v. Pennington, 287 F.3d 739, 745 (8th Cir.2002).

There is a factual dispute about whether Cunningham, Severson, or Quinn opened a door to one of the buildings, stepped inside, and called for Christensen before leaving. In ruling on defendants’ motions for summary judgment, the court views the facts in the light most favorable to Christensen and assumes that each of those three individuals entered at least one of the buildings. To demonstrate a Fourth Amendment violation stemming from an entry into the outbuildings themselves, Christensen must establish that he asserted a subjective expectation of privacy in the outbuildings, and that his subjective expectation is objectively reasonable. United States v. Douglas, 744 F.3d 1065, 1069 (8th Cir.2014).

If Christensen had a subjective expectation of privacy in his outbuildings, the court must then decide whether that expectation was objectively reasonable. Id. (“The first question is a question of fact, the second is a question of law.”). The Supreme Court’s decision in Dunn and the Eighth Circuit’s subsequent decision in Pennington make clear that although an officer may stand in an open field and observe activity in an enclosed structure, even from immediately next to the structure, law enforcement usually should obtain a warrant before entering a structure in an open field. Dunn, 480 U.S. at 304, 107 S.Ct. 1134 (noting that the officers did not enter the barn but instead stood in an open field and “peered into the barn’s open front”); Pennington, 287 F.3d at 745 (“The Supreme Court made that clear in Dunn when it emphasized that the investigating officers looked through the window of a barn that was outside the curtilage, but did not enter the barn until they obtained a warrant.”).

In this case, the barns were enclosed by chain-link fences. The doors to the barns were closed although not locked. Although the siding on the buildings contained a number of holes, the interiors were unlit. As a result, the officials would have had to open the doors and enter the buildings to see whether Christensen was within the interior.

Those facts are significant in determining whether Christensen had an objectively reasonable expectation of privacy in his outbuildings. The fences around the buildings offered some protection against encroachment. The buildings were enclosed and had doors, but the doors were not locked. See Pennington, 287 F.3d at 745-46 (relying on the fact that the bunker had no door impeding access to find that there was no objectively reasonable expectation of privacy). Although the buildings had holes in the walls, the interiors were not easily visible through those holes due to the lack of interior lighting. Objects in the interior of the barn were not openly visible to a person standing outside, making it necessary for law enforcement to open the doors to the buildings to see inside. Because inspection of the buildings would have required a physical entry, Christensen had an objectively reasonable expectation of privacy in the contents of the outbuildings of his property.

Because the court has found that Christensen had an objectively reasonable expectation of privacy in the outbuildings, the court will next address the issue of whether Cunningham, Severson, and Quinn—the members of the party who entered the buildings—were licensed to intrude for a legitimate law enforcement purpose, whether there is sufficient evidence of a conspiracy, and whether the officials in question are entitled to qualified immunity.

b. Liability

i. Cunningham

There is evidence that Cunningham entered at least one of the outbuildings on April 9, 2009. Law enforcement may make limited intrusions into protected areas for legitimate purposes, such as the service of civil process, without violating the Constitution. See United States v. Gonzalez, 441 Fed.Appx. 404, 406 (8th Cir.2011) (“This Circuit has found invasions into an area where a person holds a reasonable expectation of privacy to be lawful so long as the intrusion was justified by ‘some legitimate reason for being present unconnected with a search directed against the accused.’” (quoting United States v. Anderson, 552 F.2d 1296, 1299-1300 (8th Cir.1977))); United States v. Raines, 243 F.3d 419, 420-21 (8th Cir.2001) (“We conclude that Davison’s limited intrusion was justified because he had the legitimate objectives of locating Toni Will, who he had reason to believe was located at the residence, and serving her with civil process.”).

In Raines, the deputy knocked on the front door of Raines’s house and no one answered. Id. at 420. Because the deputy observed several cars parked in the driveway, he believed people might be enjoying the summer evening in the backyard. As a result, the deputy proceeded through a makeshift wall into the backyard, where he observed marijuana. Id. at 420-421. The Eighth Circuit held that the deputy did not violate Raines’s Fourth Amendment rights even though he entered the curtilage of Raines’s home without a warrant because the deputy was engaged in a good faith attempt to serve civil process. Id. at 422.

Christensen does not challenge the holding in Gonzalez and Raines, which recognizes that that limited intrusions into protected areas for legitimate purposes are permissible. Instead, Christensen appears to contend that Cunningham could not have had a reasonable belief that Christensen was in the areas where she looked.

Christensen does not dispute that when Cunningham arrived on April 9, 2009, Christensen’s garage door was open and vehicles were present. As in Raines, those facts support a reasonable belief that someone might be home at Christensen’s residence but unable to hear knocking on the front door. Christensen argues that the buildings Cunningham, Severson, and Quinn entered were unlit and surrounded by chain-link fences, and that it is unlikely Christensen would have entered a building with a makeshift door and pulled it closed behind him. See Docket 367 at 41, 43, 47. The facts that a building had a rickety door or a chain-link fence around it does not prove that Christensen could not have been in that building at the time Cunningham was trying to locate him. Furthermore, the fact that a building’s interior was unlit is a fact that would have been unknown to Cunningham until she actually opened the door to the building. This evidence does not tend to show that Cunningham exceeded her license to attempt to locate Christensen on his property.

The evidence cited by Christensen, viewed in the light most favorable to him, is insufficient to create a genuine question of fact as to whether Cunningham was actually engaged in a good faith effort to serve civil process on Christensen. Because the facts of the limited intrusion here are indistinguishable from Raines, Cunningham’s actions on April 9, 2009, did not violate Christensen’s Fourth Amendment rights.

Even if Cunningham did not personally violate Christensen’s constitutional rights, she could still be liable if she conspired with another person to do the same. In support of his conspiracy theory, Christensen contends that the short amount of time between Landeen-Hoeke’s report to Cunningham and the service of the three-day notice and arrest warrant indicates a conspiracy. Christensen also argues that the size of the party at Christensen’s property and the presence of animal control officers, even though there were no loose dogs seen and Quinn and Wigg did not bring any gear along, support the conclusion that the trip to Christensen’s property was a cover for an illegal search. Christensen also points out that Cunningham met with Quinn, Severson, and Landeen-Hoeke on the morning of April 9, 2009, at the Turner County courthouse before going to Christensen’s property, and that Cunningham therefore had an opportunity to conspire with the other defendants.

“Various people engaged in investigating and reporting suspected criminal activity does not amount to a conspiracy. We look for a genuine factual issue of concerted activity toward an unlawful objective.” Myers v. Morris, 810 F.2d 1437, 1454 (8th Cir.1987) (emphasis added), abrogated on other grounds by Burns v. Reed, 500 U.S. 478, 483-84, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); accord Reasonover v. St. Louis Cnty., 447 F.3d 569, 582 (8th Cir.2006). Cunningham testified, and Christensen does not refute, that one day is a normal time frame for an investigation into a misdemeanor sales tax license issue such as the one performed by Cunningham on April 8, 2009, and that it is ordinary for a revenue agent to prepare an affidavit for a prosecutor. Docket 410-1 at 3-4. These actions by Cunningham do not show that she agreed to participate in unlawful conduct. Similarly, Cunningham’s presence at the courthouse on the morning of April 9, 2009, does not show that she joined a conspiracy. Christensen’s contention that it would have been possible for all the defendants, including Cunningham, to plan their conspiracy at that meeting is entirely speculative. See Crawford v. Van Buren Cnty., Ark., No. 4:09CV00932 SWW, 2011 WL 1464513, at *4 (E.D.Ark. April 15, 2011) (finding evidence that defendants were present at a meeting where statements possibly indicating the objective of a conspiracy were made, to be insufficient to support a finding of conspiracy against those defendants) affirmed by Crawford v. Van Buren Cnty., Ark., 678 F.3d 666 (8th Cir.2012).

Christensen also relies heavily on actions taken by Quinn on April 9, 2009. The number of people, including Quinn, on Christensen’s property on April 9, 2009, does not by itself show that Cunningham reached an agreement to deprive anyone of any constitutional rights. Furthermore, Cunningham’s presence on Christensen’s property at the same time as Quinn is insufficient to prove that Cunningham conspired with Quinn or others. See Crawford, 678 F.3d at 671 (“Notably, the defendants’ mere presence during the search was not sufficient to prove a conspiracy existed. Therefore, the court properly granted summary judgment because no evidence supported the conspiracy allegations.”). There is no evidence that Cunningham reached an agreement with Quinn or others to get Quinn onto Christensen’s property so Quinn could unlawfully search Christensen’s dog breeding operation. Furthermore, there is no evidence that Cunningham had any knowledge of where Quinn went or what she did after Cunningham left Christensen’s property.

Christensen points to other evidence arising after April 9, 2009, that he claims creates a question of fact as to whether Cunningham joined the alleged conspiracy. Christensen contends that because Cunningham did not reveal during her testimony at the suppression hearing that Lan-deen-Hoeke was the person who started the sales tax license investigation, this indicates that Cunningham was part of the alleged conspiracy. Similarly, Christensen argues that discrepancies in Cunningham’s deposition testimony, such as who opened which door to which building and whether Cunningham stepped on a rat, indicate an attempt to cover up the truth, and therefore suggest Cunningham was involved in the alleged conspiracy. Many of these facts are not material, and none of them provides any actual proof, beyond speculation and innuendo, that Cunningham reached an agreement with anyone to deprive Christensen of his constitutional rights.

Christensen does submit an email chain between Cunningham and Landeen-Hoeke from April 21, 2009, in which Cunningham advises Landeen-Hoeke of the status of Christensen’s sales tax license and asks whether SCRC executed a search warrant on Christensen’s property. See Docket 369-35. These emails shows that Cunningham was aware that a search of Christensen’s property would require a warrant, but they do not contain any evidence that Cunningham agreed with Landeen-Hoeke, Quinn, or anyone else to deprive Christensen of his rights. Although the evidence is viewed in the light most favorable to Christensen, Christensen is still required to present specific evidence of the alleged agreement or understanding. See Reason-over, 447 F.3d at 582.

Cunningham enjoyed a limited license to intrude on Christensen’s property to locate Christensen and to serve the three-day notice on him. Christensen has failed to identify sufficient evidence linking Cunningham to the alleged conspiracy. Accordingly, Cunningham is entitled to summary judgment on Count II.

ii. Severson

As with Cunningham, there is a factual question as to whether Severson entered any of the outbuildings on April 9, 2009. For the same reasons stated with respect to Cunningham, Severson had a limited license to enter those areas to serve civil process. The court turns next to whether Severson joined the alleged conspiracy.

To show that Severson disliked Christensen and had a motive to conspire with others to violate Christensen’s rights, Christensen alleges that he and Severson “go way back.” See Docket 367 at 34. But Christensen’s assertions about Sever-son’s state of mind and motivations are speculative. Additionally, even assuming there was some personal animosity between Severson and Christensen, that fact does not show that Severson joined a conspiracy to violate Christensen’s constitutional rights.

Christensen emphasizes that Severson is the individual who requested that Quinn accompany the party. See, e.g., Docket 367 at 5-6. Severson admitted that he asked Quinn to accompany the party that day because he was worried about loose dogs and wanted Quinn there to protect the officers in case they were attacked. See Docket 292-2 at 7 (Severson stating that he requested the assistance of animal control to protect the party from dogs). This justification for Quinn’s presence is inconsistent with Quinn’s recollection that she was there to care for the animals after Christensen was arrested. See Docket 369-2 at 4 (Quinn stating that she was present on April 9, 2009, to care for the dogs after Christensen was arrested); Docket 369-15 at 12 (Quinn stating that she was unaware that Severson thought she was there to protect the party from loose dogs). Christensen notes, however, that Quinn did not bring along any equipment that would have allowed her to control loose dogs. See Docket 369-3 at 9.

Viewed in the light most favorable to Christensen, these facts establish that Sev-erson agreed that Quinn could accompany the party serving the warrant and the three-day notice to Christensen’s property on April 9, 2009. But Quinn stated that she did not enter the outbuildings until after Severson and the rest of the party left. Docket 369-15 at 18. Importantly, Christensen provides no evidence that Sev-erson knew or had any part in Quinn’s activities of entering the outbuildings on April 9, 2009. Nor is there evidence that Severson authorized Quinn to enter the outbuildings.

Christensen makes other allegations, such as Severson took an excessive amount of time away from a homicide investigation to assist with the service of the three-day notice (Docket 367 at 33); that Severson’s testimony regarding April 9, 2009, conflicts with the testimony of others present in various ways (Docket 367 at 36); and that Severson could not have felt threatened by the dogs because he did not have his gun drawn when walking around Christensen’s property (Docket 367 at 33-34). None of those facts provides the missing piece of Christensen’s theory: some type of knowledge on Severson’s behalf that Quinn or others intended to violate Christensen’s constitutional rights. Without any evidence that Severson knew of the alleged constitutional conspiracy, Severson cannot be hable as a conspirator, even if his acts resulted in furthering the conspiracy.

Severson did not personally violate Christensen’s constitutional rights because he was licensed to intrude on Christensen’s property. Additionally, Christensen has not identified evidence sufficient to show that Severson knowingly joined the alleged conspiracy. Severson is entitled to summary judgment on Count II.

iii. Quinn and SCRC

Quinn is only licensed to intrude on Christensen’s property if she is engaged in a good faith effort to assist law enforcement in serving the three-day notice and the arrest warrant, but not if those justifications were an excuse to perform an unrelated search of Christensen’s property. See Gonzalez, 441 FedAppx. at 406. Quinn’s justification for her presence is inconsistent with what others thought she was doing. See Docket 369-2 at 4 (Quinn stated that she was present on. April 9, 2009, to care for the dogs after Christensen was arrested); Docket 369-15 at 12 (Quinn stated that she was unaware that Severson thought she was there to protect the party from loose dogs). Quinn did not bring along any equipment that would allow her to control loose dogs. See Docket 369-3 at 9. And Quinn testified in her deposition that Landeen-Hoeke mentioned that service of the arrest warrant and three-day notice was a good opportunity to check Christensen’s property for evidence of allegations of neglect. Docket 484 at 7 n. 12. This evidence is sufficient to create a question of fact as to whether Quinn was on Christensen’s property to help serve the arrest warrant and three-day notice, or if she was really there to search Christensen’s property and did so without a warrant.

Because there is a question as to whether Quinn violated Christensen’s Fourth Amendment rights or joined the alleged conspiracy, the court next turns to whether Quinn is entitled to qualified immunity. “ ‘[Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir.2014) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). This protection extends to allegations of conspiracy. See, e.g., Pendleton v. St. Louis Cnty., 178 F.3d 1007, 1010 (8th Cir.1999) (refusing to review the sufficiency of the evidence linking the defendants to the conspiracy, but reviewing “whether Defendants objectively could have believed that the conduct in which they allegedly engaged did not violate clearly established law”).

Resolving a question of qualified immunity “ ‘involves the following two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.’ ” Smith, 754 F.3d at 545 (quoting Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir.2013)). For a right to be clearly established, there does not need to be “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). The court may address either prong first. Id. at 2080 (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Qualified immunity is a question of law not a question of fact.” McClendon v. Story Cnty. Sheriffs Office, 403 F.3d 510, 515 (8th Cir.2005).

In this case, Christensen has a clearly established right to be free from unreasonable searches and seizures in the outbuildings on his property. See Pennington, 287 F.3d at 745 (recognizing that- buildings such as barns enjoy Fourth Amendment protection).' The rule prohibiting physical intrusions into buildings such as barns has been established in this circuit since at least 2002 when Pennington was decided. A reasonable animal control officer would be aware of that right. For the reasons discussed above, the evidence identified by Christensen supports a violation of that right. Therefore, Quinn is not entitled to summary judgment on Count II.

SCRC argues that it is not liable for Quinn’s actions and that Christensen cannot identify an unconstitutional policy or custom sufficient to trigger liability on behalf of SCRC. Docket 474 at 16-17. Christensen responds by contending that “Rosey Quinn is Second Chance.” Docket 520 at 38. He then cites instances in which Quinn hired family members and exercised control over the operations of SCRC. See Docket 520 at 38-40. Christensen fails to provide any legal authority. See id. (containing no supporting authority). The court construes this argument as a claim that Quinn represented the official company policy of SCRC.

SCRC is correct that a corporation cannot be liable “solely because it employs a tortfeasor.” Smith v. Insley’s Inc., 499 F.3d 875, 881 n. 4 (8th Cir.2007) (internal quotations omitted) (italics in original). “The proper test [for corporate liability under § 1983] is whether there is a policy, custom or action by those who represent official policy that inflicts injury actionable under § 1983.” Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 976 (8th Cir.1993) (italics added). In Insley’s, which is cited by SCRC, the Eighth Circuit stated:

Insley’s cannot seriously contend that Smith is attempting to hold it liable under a respondeat superior theory of liability. Jeff Insley represented during his deposition that he was Insley’s corporate representative, and it was clear from his testimony that he was the decision-maker with regard to [the underlying constitutional violation]. Jeff Ins-ley’s decisions clearly represented the company’s “official policy.”

Insley’s, 499 F.3d at 881 n. 4. Similarly, Quinn’s status as the executive director of SCRC means she represents the official policy of the organization, and SCRC can be liable based on Quinn’s actions. Therefore, SCRC is not entitled to summary judgment on Count II.

iv. Nogelmeier, Ostrem, Adamson, Langerock, Schmeichel, and Van Hove

There is no evidence that Ostrem entered any of the buildings on Christensen’s property on April 9, 2009. Nogelmeier, Adamson, Langerock, Schmeichel, and Van Hove were not present. Christensen has not identified any evidence that any of these defendants knew of Quinn’s actions. Because there is no evidence that Nogel-meier, Ostrem, Adamson, Langerock, Schmeichel, or Van Hove personally violated Christensen’s rights on April 9, 2009, or that they conspired with Quinn to allow, her to search Christensen’s outbuildings, they are entitled to summary judgment on Count II.

2. Count I

Count I also alleges a violation of 42 U.S.C. § 1983. Christensen claims that leading up to and during the September 2, 2009, raid on Christensen’s property, all defendants conspired to violate Christensen’s right to be free from unreasonable searches and seizures. Count I additionally claims that all defendants conspired to deprive Christensen of his right to procedural and substantive due process in violation of the Fifth and Fourteenth Amendments.

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed,2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Id. In this case, before the court can consider Christensen’s allegations, the court must determine whether Christensen’s § 1983 claim stemming from the events of September 2, 2009, should be analyzed under the concept of Fourth Amendment search and seizure, Fourteenth Amendment due process, or both. “Whether a substantive due process right exists is a question of law.” Moran v. Clarke, 296 F.3d 638, 643 (8th Cir.2002).

“ ‘As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decision-making in this unchartered area are scarce and open-ended.’ ” Oliver, 510 U.S. at 271-72, 114 S.Ct. 807 (quoting Collins v. City of Marker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’ ” Id. at 273, 114 S.Ct. 807 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

Christensen’s due process argument is unclear. The amended complaint alleges that:

Defendants acted in concert and/or conspired together and committed acts designed to deprive Plaintiff Dan Christensen of his property which was held and stored under the authority of the Turner County Sheriffs [sic] Office as evidence in an ongoing criminal investigation and prosecution after it was unlawfully seized on September 2, 2009, insomuch as his dogs were removed from his property and the property of Plaintiffs David and Kelly Christensen without his consent for an unreasonable amount of time and improperly cared for, causing them to be permanently altered or destroyed, thereby depriving him of his right to Procedural and Substantive Due Process in violation of the Fifth and Fourteenth Amendment [sic] to the United States Constitution.

Docket 133 at 22-23. In his numerous briefs, Christensen never consistently relies on any one theory. Instead, Christensen frames his due process allegations as a failure to preserve or safeguard evidence in a criminal case, a failure to properly document evidence during the seizure, a failure to protect the value of his property while it was in the custody of the defendants, a failure to allow him an opportunity to inspect the evidence during and immediately following the seizure, falsification of evidence, failure to include exculpatory information in a search warrant affidavit, and an intentional or reckless failure to investigate. Christensen never identifies any specific procedural rights of which he was deprived, and only provides legal authority for his claims of an intentional or reckless failure to investigate and fabrication of evidence. See Docket 383 at 39 (citing Livers v. Schenck, 700 F.3d 340, 351-52 (8th Cir.2012)).

To establish a violation of a substantive due process right, Christensen must show (1) that an official violated one or more fundamental constitutional rights, and (2) that the conduct of the official was shocking to the contemporary conscience. Flowers v. City of Minneapolis, Minn., 478 F.3d 869, 873 (8th Cir.2007). “[Fundamental rights are those ‘deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’ ” Id. (quoting Terrell v. Larson, 396 F.3d 975, 978 n. 1 (8th Cir.2005) (en banc)). “[T]he state action must be ‘truly egregious and extraordinary’ to shock the conscience.” Livers, 700 F.3d at 351 (quoting Winslow v. Smith, 696 F.3d 716, 735-36 (8th Cir.2012)). Whether conduct shocks the conscience is a question of law. Folkerts v. City of Waverly, Iowa, 707 F.3d 975, 980 (8th Cir.2013).

Christensen does provide legal authority for the proposition that a reckless investigation can violate the due process clause. See Livers, 700 F.3d at 351-52. To establish such a violation, Christensen would have to prove that officials purposely ignored evidence suggesting innocence or used systemic pressure to implicate him in the face of evidence to the contrary. Id. at 351. Although the September 2, 2009, warrants were suppr