NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUTTA KOSIELOWSKY, an individual, 

Plaintiff-Appellant, 

 v. 

NEVADA COUNTY, a governmental 

agency; et al., 

Defendants-Appellees.

No. 18-16633 

D.C. No. 

2:17-cv-01141-MCE-AC 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Submitted February 11, 2020**

San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,***

District Judge.

This case concerns a dog who was euthanized at Sammie’s Friends, a private

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Susan R. Bolton, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

MAR 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-16633 

animal-care facility, eighteen days after it was deemed legally abandoned. The 

dog’s former owner, Plaintiff-Appellant Jutta Kosielowsky, sued DefendantAppellees Sammie’s Friends, Sammie’s Friends’ employee Cheryl Wicks, Nevada 

County, and Nevada County employee Doe 1 (collectively, Defendants) under 42 

U.S.C. § 1983, alleging: (1) illegal seizure of her dog in violation of the Fourth 

Amendment; and (2) deprivation of her Fourteenth Amendment procedural due 

process rights. The district court dismissed Kosielowsky’s Second Amended 

Complaint (SAC) without granting leave to amend. We have jurisdiction under 28 

U.S.C. § 1291 and affirm.1

I. Abandonment 

In determining whether an asserted claim can be sustained, “[a]ll of the facts 

alleged in the complaint are presumed true, and the pleadings are construed in the 

light most favorable to the nonmoving party.” Bates v. Mortg. Elec. Registration 

Sys., Inc., 694 F.3d 1076, 1080 (9th Cir. 2012) (citation omitted). Nevertheless, 

“for a complaint to survive a motion to dismiss, the nonconclusory ‘factual 

content,’ and reasonable inferences from that content, must be plausibly suggestive 

of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 

969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

1 Because the parties are familiar with the facts of this case, we do not discuss 

them at length here. 
3 18-16633 

The district court fairly determined that Kosielowsky failed to allege 

ownership of the dog at the time of its death. In California, if an animal-care 

facility takes custody of an animal for boarding, and the animal is not retrieved on 

the agreed-upon date, the facility must hold the animal for fourteen days before it 

is deemed abandoned. Cal. Civ. Code § 1834.5(a). Kosielowsky not only admits 

that she failed to retrieve the dog on the appointed date, but she also fails to allege 

facts indicating her intent to retrieve the dog. For example, Kosielowsky fails to 

allege that she or anyone on her behalf tried to retrieve the dog, or explain why the 

threat of a phone call to the sheriff would prevent her from attempting to retrieve 

the dog for more than one month after the agreed-upon date. Without more, 

Kosielowsky’s allegation of subjective fear does not overcome the fact that her dog 

was legally abandoned. 

II. State Action

Because the district court limited its holding to the narrow issue of 

abandonment, it did not address the issue of whether Sammie’s Friends and Wicks, 

respectively, are state actors for the purposes of § 1983. Kosielowsky now asks us 

to find that Sammie’s Friends, a private corporation, and Wicks, a corporate

employee, were acting under the color of state law. We do not. Kosielowsky 

neither alleges nor can it be inferred that Sammie’s Friends and Wicks were “fully 

vested with state authority.” West v. Atkins, 487 U.S. 42, 57 (1988). And, 
4 18-16633 

significantly, Kosielowsky voluntarily placed the dog in the care of Sammie’s 

Friends and Wicks; there was no search and seizure by any actor—state or 

otherwise. 

III. Denial of Leave to Amend 

Leave to amend shall be freely given when justice so requires. Fed. R. Civ.

P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). At the same time, while that 

policy “should be applied with extreme liberality,” a district court may deny leave 

to amend where amendment would be futile. United States v. Webb, 655 F.2d 977, 

979–80 (9th Cir. 1981) (citation and quotation omitted). 

Kosielowsky has thus far failed to allege ownership of the dog in her three 

bites at the apple. Her arguments on appeal do not signal that, if afforded a fourth

bite, she will allege facts demonstrating either ownership of the dog at the time of 

its death, or conduct indicating her intent to retrieve the dog before it was deemed 

legally abandoned. The district court’s denial of leave to amend the SAC should 

not be disturbed; Kosielowsky cannot offer any amendment that will cure its 

primary defect. 

AFFIRMED.