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Boysen v. Holbrook

March 19, 2007


The opinion of the court was delivered by: Judge Algenon L. Marbley

Magistrate Judge Abel



This action filed by Dr. Sarah Boysen ("Boysen" or "Plaintiff") against three officials of The Ohio State University ("OSU") involves the allegedly illicit transfer of nine chimpanzees ("chimps") from the Chimpanzee Cognition Center (a.k.a. the Comparative Cognition Project) at OSU (the "Chimp Center") to Primarily Primates, Inc. ("PPI"), an animal care facility in Texas.

Plaintiff is a renowned primate researcher, tenured professor of psychology at OSU, and former Director of the Chimp Center. Defendant, Dr. Karen Holbrook ("Holbrook"), is President of OSU. Defendant, Dr. William Yonushonis ("Yonushonis"), is Director of University Laboratory Animal Resources at OSU. Defendant, Dr. Robert McGrath ("McGrath"), is Senior Vice President for Research at OSU.

In her complaint, Plainitiff asserts that she owned nine chimps that were housed and cared for at the Chimp Center. Plaintiff contends that Defendants transferred these chimps to PPI instead of Chimp Haven, a chimp retirement home in Louisiana, in violation of the Parties' previous agreements. Plaintiff makes three claims for relief. First, she alleges that Defendants abridged her rights under 42 U.S.C. § 1983 by taking the chimps without providing her just compensation in violation of the Fifth and Fourteenth Amendments. Second, she alleges that Defendants abridged her rights under 42 U.S.C. § 1983 by taking the chimps without providing her due process in violation of the Fourteenth Amendment. Third, she alleges that Defendants breached certain contracts relating to the chimps.

Plaintiff brings suit against Defendant Holbrook in her official capacity. Plaintiff brings suit against Defendants Yonushonis and McGrath in both their official and personal capacities. Plaintiff seeks three forms of relief: (1) a declaration that Defendants violated her Fifth and Fourteenth Amendment Rights; (2) an injunction preventing Defendants from denying her access to the Chimp Center and enjoining Defendants from transporting the chimps from the Chimp Center; and 3) compensatory and punitive damages.

This matter is now before the Court on Defendants Motion for Summary Judgment. Defendants assert that they are protected from Plaintiff's claims by sovereign immunity, state statutory immunity, and qualified immunity. For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED.


Plaintiff is a world renowned primate researcher and former Director of the Chimp Center. She began her directorship in 1983. She has also been a psychology professor at OSU since 1991, receiving tenure in 1997.

Over the course of the last two decades, the Chimp Center obtained eleven chimps. There names are: Digger, Abby, Kermit, Bobby, Sheba, Ivy, Keeli, Darrell, Sarah, Emma, and Harper. Two of these chimps, Digger and Abbey, died in 2003 while at the Chimp Center. Two others, Kermit and Bobby, died after their transfer to PPI. Federal grants to OSU and over $1 million in donations for various departments at OSU paid for the majority of the chimps' housing and maintenance costs.*fn1

Beginning in 2000, federal grant monies for programs like those conducted at the Chimp Center began to dissipate. Plaintiff and OSU commenced looking for alternative sources of funding for the Chimp Center and other living arrangements for the chimps. In July 2003, after several of Plaintiff's grant proposals did not meet with success, the Parties redoubled their efforts to find alternative funding or new facilities for the chimps.

In January 2004, when it became apparent that there would not be enough funding to sustain the Chimp Center, OSU entered into two Memoranda of Understanding. The relevant offices at OSU (the Department of Psychology, College of Social and Behavioral Sciences, Office of Research, and Office of Academic Affairs) entered into an agreement that outlined a plan for the future of the Chimp Center (the "OSU MOU"). The OSU MOU anticipated closing the Chimp Center and transferring the chimps to Chimp Haven in the event that "sufficient external funding [for the Chimp Center] ceases to be available." At the same time, OSU and Chimp Haven entered into a memorandum of understanding in which Chimp Haven stated its intention to accept nine chimps from OSU, thereby relinquishing OSU of the obligation to provide financial resources for the care of the chimps (the "Chimp Haven MOU").

In early 2006, OSU determined that the prospect of finding additional funds to sustain the Chimp Center no longer existed. Subsequently, OSU attempted to finalize arrangements to send the Chimps to Chimp Haven. Their efforts proved unsuccessful. As a result, OSU looked for another facility at which the chimps could retire. On February 21, 2006, Defendant McGrath met with Plaintiff to discuss the disposition of the chimps. At the close of their meeting, he presented Plaintiff with a letter which outlined OSU's plan to close the Chimp Center and ship the chimps to PPI. Thereafter, Plaintiff filed this lawsuit and sought a TRO restraining Defendants from closing the Chimp Center and shipping the chimps to PPI. On February 27, 2006, this Court denied Plaintiff's request for a TRO.

Subsequently, both PPI and Chimp Haven have been the subject of litigation regarding the quality of their facilities and the care that they provide their retired animals. As a result of this litigation, the chimps were transferred from PPI to Chimp Haven, as Plaintiff had originally desired.

On June 16, 2006, Defendants filed the present Motion for Summary Judgment, to which Plaintiff and Defendants filed a memorandum contra and a reply memorandum, respectively. Defendants' Motion for Summary Judgment is now ripe for adjudication.


Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Vatrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). In response, the nonmoving party must present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). "[S]ummary judgment will not lie if the dispute is about a material fact that is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the nonmoving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In responding to a motion for summary judgment, however, the nonmoving party "may not rest upon its mere allegations ... but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. ...

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