18-2639 Newsome v. Bogan

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the Unite d States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

28 th day of February, two thousand twenty.

Present: ROSEMARY S. POOLER, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges

.

_____________________________________________________

MICHAEL NEWSOME,

Plaintiff-Appellant

,

v. 18-2639

BOGAN, J. DRESSER, MARK PLYTER, BOB HOWARD, HUGH COMPTON, HUMANE SOCIETY OF WAYNE COUNTY,

Defendants-Appellees

.

_____________________________________________________

Appearing for Appellant: Matthew B. Byrn e, Gravel & Shea PC, Burlington, VT.

Appeal from the United States District Court fo r the Western District of New York (Geraci,

C

. J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said Dist rict Court be and it hereby is REVERSED and REMANDED in part and AFFIRMED in part

.2 Appellant Michael Newsome appeals fr om the August 10, 2018 judgment of the United

States District Court for the Western District of New York (Geraci, C

. J. ), dismissing Newsome’s amended complaint for failure to state a claim. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

In its decision and order, the district c ourt held that Newsome had not alleged a valid

Fourth Amendment claim based on the seizure and death of his dogs, nor had he alleged a Fourteenth Amendment due process claim. Newsome v. Bogan , No. 16-cv-6451, 2018 WL 8967295, at *1 (W.D.N.Y. Aug. 9, 2018).

To survive a motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007), and we need not accept as true legal conclu sions couched as factual allegations. Id . at 555. “Even after Twombly , though, we remain obligated to construe a pro se complaint liberally.” Harris v. Mills

, 572 F.3d 66, 72 (2d Cir. 2009). This is particularly true “when the pro se plaintiff alleges that his civil rights have been violated.” Ahlers v. Rabinowitz , 684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks, citation, a nd alteration omitted).

Newsome argues that his amended complain t states a valid Fourth Amendment claim because his allegations suggest that the defenda nts unreasonably, and ther efore illegally, seized his pet dogs by removing them fro m his home and subsequently eu thanizing them. We agree.

We first address the issue of whether News ome has properly allege d state action with respect to the Humane Society and its employee Mark Plyter. State action requires “such a close

nexus between the state and the ch allenged action that the state is responsible for the specific conduct of which the pl aintiff complains.” Fabrikant v. French , 691 F.3d 193, 207 (2d Cir. 2012) (internal quotation marks, brac kets, and citation omitted). When Fabrikant first came before us, we held that the Ulster County So ciety for the Prevention of Cruelty to Animals (“SPCA”) investigators were state actors “when they conducted the search of Fabrikant’s house and the seizure of the dogs.” Id . at 203. When the case returned on remand, we further held that “in taking custody of the dogs and making decisions about their prop er maintenance and care, the SPCA officials were simply following up on the in itial seizure of the dog s, which concededly was state action,” and thus there was “a suffic iently close nexus between the State and the challenged action” as needed for state action. Id . at 211 (internal quota tion marks and citation omitted). In Fabrikant , we reiterated that such a nexus could occur where “the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, [or] the entity has been de legated a public function by the state.” Id . at 207 (internal quotation marks and citation omitted).

Here, Newsome has alleged facts that are suffic ient to plead state act ion by Plyter and the Humane Society at this stage of the proceedings . For instance, Newsome alleged that Plyter had participated in the seizure of the dogs from Newsome’s home, and when doing so, Plyter was acting in concert with the state. See Fabrikant , 691 F.3d at 203. Accordi ng to the complaint, Plyter informed Newsome that th e Lyons Police Department had inst ructed Plyter to consider the dogs abandoned and not re lease them to Newsome. Newsome also alleged that the Humane3 Society euthanized his dogs. Based on these facts, Newsome has adequately pled state action as to Plyter and the Humane Society.

The unreasonable removal or killing of a companion animal constitutes an

unconstitutional seizure of personal property under the Fourth Amendment. See Carroll v. County of Monroe , 712 F.3d 649, 651 (2d Cir. 2013); Fabrikant , 691 F.3d at 205, 215-16. “To determine whether a seizure is unreasonable, a co urt must balance the nature and quality of the

intrusion on the individual’s Fourth Amendment interests ag ainst the importance of the governmental interest alleged to justify the intrusion and determin e whether the totality of the circumstances justified the pa rticular sort of seizure.” Carroll , 712 F.3d at 651 (alterations, internal quotation marks, and citation omitted).

The amended complaint alleges facts supporti ng the conclusion that the removal of the dogs from Newsome’s home was unreasonable. There is no question that the intrusion here was severe “given the emotional attach ment between a dog and an owner.” Id . The governmental interest, on the other hand, app ears to have been relatively weak. According to the amended complaint, at least one of the dogs was encl osed in a crate and not obviously capable of interfering with officer safety. Th ere was also no apparent concer n with destructi on of evidence,

as the relevant evidence had been collected from Newsome’s home on a pr ior occasion. Plyter’s

after-the-fact statement that the dogs were aggressi ve and abandoned does not alter our conclusion. The amended complaint states that Pl yter initially told Ne wsome he could come claim the dogs before calling b ack to tell him that the dogs were abandoned and aggressive. This backtracking supports the inference that these reasons were pretextual.

In any event, Newsome also has a valid F ourth Amendment claim based on the death of the dogs. Because law enforcement brought the d ogs to the Humane Society, the government lacked an interest in protecting the public from dangerous dogs. The dogs were not wandering

loose on the streets and able to harm the public while secure d at the Humane Society. In addition, Newsome made multiple attempts to arra nge for his dogs to be picked up by him or his mother. Though the interest in preventing danger to the person or property of others can justify a dog catcher’s taking a stray into custody, this does not mean that th e state may destroy a companion animal with out justification.

Taking all inferences in News ome’s favor as we must, his a llegations support a claim that the dogs’ removal and death were unreasonable seiz ures. Therefore, dismissal of the complaint was improper. Newsome has adequately pled a Fourth Amendment claim against all of the

defendants.

We further conclude that Newsome has pled a valid retaliation claim against Bogan and Plyter based on Newsome’s allegation that they seized the dogs in re sponse to his refusal to go to the police station for an interview. A retaliati on claim requires showi ng that the plaintiff “engaged in conduct that was const itutionally protected and that re taliation against the protected conduct was a substantial or motivating factor in the defendant’s actions.” Blue v. Koren , 72 F.3d 1075, 1082 (2d Cir. 1995) (internal quotation marks and citation omitted). The plaintiff must show “(1) that the speech or c onduct at issue was protected, (2) th at the defendant took adverse action against the plaintiff, and (3) that ther e was a causal connection between the protected4 speech and the adverse action.” Dolan v. Connolly , 794 F.3d 290, 294 (2d Cir. 2015) (internal quotation marks and citation omitted).

Newsome has met all three requirements here . The Fourth Amendment protects the right

of an individual to “walk away from police questioning.” Burns v. Martuscello , 890 F.3d 77, 90 (2d Cir. 2018); see also United States v. Hooper

, 935 F.2d 484, 490 (2d Cir. 1991). Thus, Newsome’s refusal to go to the station for questioning was protect ed conduct. Next, the seizure of his dogs was undoubtedly an adverse action. Fi nally, Newsome has pled a connection between the protected conduct and the seizure. The amen ded complaint contains statements from Bogan and Plyter indicating that the seizure only occurred because of Newsome’s conduct. For example, the complaint states, “I called the Lyons Police department and spoke with officer Bogan who stated that since I did not come to the station and answer qus tions [sic] on beating up your girlfriend my men seized your dogs.” App’x at 19. The complaint al so states that Plyter told Newsome during a phone call “to contact Lyons Po lice department you should have went to the station to answer their questios [s ic] on beating up your girl friend.” Id . at 18. The amended complaint has sufficiently pled a retaliation claim against Bogan and Plyter.

We do, however, affirm the distri ct court’s conclusion that Ne wsome has failed to state a Fourteenth Amendment due proces s claim. The district court di smissed Newsome’s Fourteenth Amendment claim because “New York provides an adequate post-deprivation remedy in § 9 of

the New York Court of Claims Act.” Newsome , 2018 WL 8967295, at *4. An adequate postdeprivation remedy can serve to bar a procedural due process claim, see Love v. Coughlin , 714 F.2d 207 (2d Cir. 1983); Morello v. James , 810 F.2d 344, 347-48 (2d Cir. 1987), if that claim is based on “random, unauthorized acts by state employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York , 101 F.3d 877, 880 (2d Cir. 1996). This rule does not, however, act as an automatic bar to procedural due process cl aims based on established state procedures, as distinguished from ra ndom acts by individua l state employees. Hellenic Am. , 101 F.3d at 880. “[D]ecisions made by officials w ith final authority over significan t matters, which contravene the requirements of a written municipal code, can constitute established state procedure.” Burtnieks v. City of New York , 716 F.2d 982, 988 (2d Cir. 1983).

Newsome has not alleged any facts from which it could be concluded that the seizure of his dogs was authorized by state procedure or a high-ranking offici al with final authority over significant matters. State law does not auth orize the defendants’ purported actions. See N.Y. Agric. & Mkts. Law §§ 117(1)(d), 123. Nor has Newsome alleged that any defendant possesses the requisite authority such that their violations of state law would constitute an established procedure.

Newsome cannot assert a substantive due process claim under the Fourteenth Amendment, either. When a claim “fits comf ortably under the coverage of the Fourth Amendment . . . the Fourth Amendment, rather th an substantive due process, should serve as the guide for analyzing” the claim. Russo v. City of Bridgeport , 479 F.3d 196, 208-09 (2d Cir. 2007) (internal quotati on marks and citation omitted).

We have considered the remainder of Newsom e’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is REVERSED and REMANDED in5 part and AFFIRMED in part. We remand to the district court with in structions to allow Newsome to file a third amended complaint for his Fourth Amendment and retaliation claims. 1

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 The Court thanks pro bono counsel for its se rvices, which greatly aided the Court in its

deliberations.