1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________

No. 11-2510

_________

SIXTH ANGEL SHEPHERD RESCUE, INC.,

Appellant

v.

SUSAN WEST; DOG LAW ENFORCEMENT BUREAU;

RICCI PYLE; JAMES SCHILIRO; BOROUGH OF MARCUS HOOK;

JOSEPH LOUGHLIN

________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-10-cv-03101)

District Judge: Honorable Berle M. Schiller

_______

Submitted Under Third Circuit LAR 34.1(a)

April 20, 2012

Before: McKEE, Chief Judge, SLOVITER, Circuit Judge

and O’CONNOR, Associate Justice (Ret.)

(Filed: April 23, 2012)

______

OPINION

______

 

Hon. Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme Court of the 

United States, sitting by designation. 
2

SLOVITER, Circuit Judge.

Sixth Angel Rescue, Inc. (“Sixth Angel”) filed a 42 U.S.C. § 1983 complaint 

against the Pennsylvania Department of Agriculture Bureau of Dog Law Enforcement 

(“Dog Bureau”), its Director Susan West (“West”), its Dog Warden Joseph Loughlin 

(“Loughlin”) (collectively “the Dog Law Defendants”), Marcus Hook Borough (“Marcus 

Hook”), Marcus Hook police officer Ricci Pyle (“Pyle”), and James Schiliro, the Mayor 

of Marcus Hook (“Schiliro”) (collectively “the Marcus Hook Defendants”). All

Defendants filed motions to dismiss, which the District Court granted. Sixth Angel 

appealed, and we will affirm.1

I.

Because we write primarily for the parties, we will recount only the facts that are 

essential to our decision. Sixth Angel is a non-profit corporation operating as a licensed 

rescue network kennel in Pennsylvania. Sixth Angel’s founder, Terry Silva (“Silva”), 

represents Sixth Angel in this case. 

On April 1, 2010, Sixth Angel rescued three dogs from North Carolina. Sixth 

Angel arranged to pick up the dogs from a paid transporter at a McDonald’s parking lot

in Pennsylvania, where other rescue network kennels also planned to pick up their dogs.2

 1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and 

this court has jurisdiction pursuant to 28 U.S.C. § 1291. 

 

At the parking lot, Loughlin saw that the dogs were being kept in terrible conditions. He

2 Apparently unbeknownst to Sixth Angel, the transporter did not have an out-ofstate license as required under 3 Pa. Stat. Ann. § 459-209(b). 
3

“seized the transport documents leaving them outside on top of crates and/or on the 

ground, took the keys to all of the volunteers and fosters who had arrived to take the dogs 

and demanded to inspect the conditions of the vans and the dogs, while telling everyone

they could not leave and would all receive citations.” App. at 359. 

Loughlin called the Pennsylvania Society for the Prevention of Cruelty to Animals 

(“PASPCA”) to investigate possible violations of the animal cruelty law.3

 PASPCA took 

the dogs “under the auspices of a veterinary evaluation, despite the presence of veterinary 

records.” Appellant’s Br. at 13. Several of the rescues4

Around the time the citation against Silva was issued, Sixth Angel and Silva sued 

PASPCA and two of its officials under 42 U.S.C. §§ 1983, 1985, and 1988 over the 

seizure of its dogs. Sixth Angel and Silva filed a motion for a preliminary injunction 

seeking the return of their dogs, which was granted and affirmed on appeal. See Sixth 

Angel Shepherd Rescue, Inc. v. Bengal, No. 10-1733, 2010 WL 2164521 (E.D. Pa. May 

were issued citations that day, 

but neither Sixth Angel nor Silva received a citation until after Sixth Angel shared its 

plans to file a lawsuit. Silva was issued a citation for violating § 459-603(c) of the 

Pennsylvania Dog Law, which prohibits sale or transfer of a dog in a public place. The 

citation was eventually withdrawn. 

 3 Humane societies such as PASPCA have certain enforcement powers under 

Pennsylvania’s animal cruelty statute. See 18 Pa. Cons. Stat. Ann. § 5511(i), (j), & (l).

4 A rescue network kennel (hereinafter “rescue”) is “[a] kennel that utilizes rescue 

network kennel homes with the goal of ultimately transferring the dog to a permanent 

owner or keeper through any means of transfer.” 3 Pa. Stat. Ann. § 459-102.
4

27, 2010), aff’d, 448 F. App’x 252 (3d Cir. 2011). The PASPCA later returned the dogs 

to Sixth Angel.

In this action, Sixth Angel alleges, inter alia, that the Dog Law Defendants 

violated its rights by their treatment of Sixth Angel and that the Marcus Hook Defendants 

violated Sixth Angel’s rights by issuing numerous “baseless” citations and zoning 

violations.5

 After Sixth Angel amended its complaint twice, all Defendants filed motions 

to dismiss. The District Court granted these motions in part, dismissing Sixth Angel’s 

claims for declaratory judgment regarding the constitutionality of 3 Pa. Stat. Ann. §§ 

459-209(b)6 and 459-603(c)7

 

 5 The Statement of Issues in Sixth Angel’s brief on appeal includes the question, 

“Did The District Court Improperly Docket the Draft Complaint?” Appellant’s Br. at 10. 

Despite making passing references to the District Court’s “instantly” filing “what had 

been a draft,” id. at 26, Sixth Angel does not explain how the District Court’s docketing 

of what Sixth Angel itself asserted to be a “true and correct copy” of the proposed 

amended complaint constituted legal error. App. at 227. Therefore, this claim is 

dismissed.

on the merits, and dismissing the rest of the claims without 

6 Section 459-209(b) states: 

It shall be unlawful for out-of-state dealers to sell, exchange, negotiate, 

barter, give away or solicit the sale, resale, exchange or transfer of a dog or 

transport a dog into or within the Commonwealth or to operate or maintain 

a dealer kennel or to deal in any manner with dogs without first obtaining 

an out-of-state dealer license from the department. It shall be unlawful for a 

kennel licensed under this act to knowingly accept, receive, buy, barter or 

exchange a dog with an unlicensed out-of-state dealer for resale. A 

conviction for a violation of this section shall result in a penalty as 

determined under section 903(c). Each transaction for each dog shall 

constitute a separate violation.

7 In relevant part, § 459-603(c) states: 
5

prejudice, giving Sixth Angel the opportunity to file a third amended complaint. The 

District Court’s Order stated that the third amended complaint “must comply with Rule 8 

of the Federal Rules of Civil Procedure, including a short and plain statement of [Sixth 

Angel’s] claims and a demand for relief sought as to each defendant” and further directed 

Sixth Angel “to organize its Third Amended Complaint to allege a distinct cause of 

action in each count.” App. at 4-5.

Sixth Angel filed the Third Amended Complaint.

8

II.

All Defendants filed motions to 

dismiss, which the District Court granted. Sixth Angel appealed.

We exercise plenary review over a District Court’s dismissal pursuant to Rule 

12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

 

It shall be unlawful for any person to buy, sell, offer to sell, transfer, barter, 

trade, raffle, auction or rent a dog at any public place in this 

Commonwealth other than a kennel licensed pursuant to this act, or a dog 

show, performance event or field trial sponsored by a recognized breed or 

kennel association or transfer by a rescue network kennel within its own 

network or to another rescue network kennel. 

8 The Third Amended Complaint contains the following eleven numbered claims: 

(I) Fourth Amendment—Dog Law Defendants, (II) Fourth Amendment—Marcus Hook 

Defendants, (III) Declaratory Judgment Against Dog Law Defendants, (IV) Free 

Association—Dog Law Defendants, (V) Fourth Amendment Claim Against Seizure of 

Property and Fourteenth Amendment Right to Due Process and Property—All 

Defendants, (VI) Fourth Amendment Claim Against All Defendants, (VII) Substantive 

Due Process Against Schiliro and Marcus Hook Borough, (VIII) First Amendment—

Marcus Hook Borough and Schiliro, (IX) Fourth Amendment—Abuse of Process—All 

Defendants, (X) Conversion—Loughlin, West, and Dog Bureau, and (XI) Bailment As 

Against Loughlin, West, and Dog Bureau. 
6

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 

1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

A. Declaratory Judgment Claims

The District Court dismissed Sixth Angel’s declaratory judgment claims 

challenging the constitutionality of Pennsylvania Dog Law §§ 459-209(b) and 459-603(c) 

under the dormant Commerce Clause and the First Amendment, both facially and as 

applied to Sixth Angel. 

Sixth Angel argues that § 459-209(b) violates the dormant Commerce Clause on 

its face because it “would enable [the Dog Law Defendants] to cite a rescue by 

‘accepting’ or ‘receiving’ a dog from someone out of state but not instate.” Appellant’s 

Br. at 40; see supra note 5. The District Court dismissed this claim, holding that § 459-

209(b) does not discriminate against out-of-state dealers9

 9 The District Court noted: “Though the law requires out-of-state dealers to pay an 

additional $300 license fee not applicable to in-state applicants, the Dog Law Bureau has 

not enforced this fee since it was declared unconstitutional in Prof’l Dog Breeders 

Advisory Council v. Wolff[, No. 1:CV-09-0258, 2009 WL 2948527 (M.D. Pa. Sept. 11, 

2009)].” App. at 45. 

and noting that Sixth Angel 

failed to plead any facts to suggest that this statute burdens interstate commerce. We 

agree with the District Court’s reasoning and will affirm. See Dep't of Revenue of Ky. v. 

Davis, 553 U.S. 328, 338-39 (2008) (“Under the . . . dormant Commerce Clause analysis, 

we ask whether a challenged law discriminates against interstate commerce. . . . [but 

a]bsent discrimination for the forbidden purpose . . . the law will be upheld unless the 

burden imposed on interstate commerce is clearly excessive in relation to the putative 
7

local benefits.” (internal quotation marks omitted, citations omitted, and alteration 

accepted)).

Sixth Angel also argues that § 459-209(b) is unconstitutional as applied to the 

organization itself. The District Court held that this claim was not ripe for declaratory 

relief because Sixth Angel did not allege that it had been cited under this provision. See 

App. at 46-47 (citing Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) 

(explaining that courts apply a “refined” test to determine whether a declaratory judgment 

case is ripe by considering “(1) the adversity of the parties' interests, (2) the 

conclusiveness of the judgment, and (3) the utility of the judgment.” (citations and 

internal quotation marks omitted))). Given the absence of a developed factual record as 

to this claim, this decision will be affirmed. See Khodara, 376 F.3d at 196 (“Various 

considerations underpin the ripeness doctrine, including . . . whether the facts of the case 

are sufficiently developed to provide the court with enough information on which to 

decide the matter conclusively, and whether a party is genuinely aggrieved so as to avoid 

expenditure of judicial resources on matters which have caused harm to no one.” (internal 

quotation marks and citation omitted)).

In contrast to this lack of a factual record, Sixth Angel’s claim that § 459-603(c)10

 10 See supra note 6. 

is unconstitutional as applied is based on a citation issued against Silva. The District 

Court dismissed this claim as moot because the citation had been withdrawn. We agree 

that Sixth Angel’s claim suffers because of its failure to demonstrate a reasonable 

likelihood of recurring harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) 
8

(“The rule that a claim does not become moot where it is capable of repetition, yet evades 

review . . . applies only in exceptional situations, and generally only where the named 

plaintiff can make a reasonable showing that he will again be subjected to the alleged 

illegality.”). 

Sixth Angel also asserts a facial attack on § 459-603(c), arguing that it is 

unconstitutionally vague because “transfer” is not defined in the Pennsylvania Dog Law, 

and that it impedes free association in violation of the First Amendment. The District 

Court dismissed these claims, holding that Sixth Angel’s factual allegations did not 

support its claim that the vague definition of “transfer” discriminates against or burdens 

interstate commerce, and that the First Amendment claim failed because the common 

meaning of the word “transfer” provides adequate notice of the conduct that this statute 

prohibits. We agree with the District Court’s reasoning, and will affirm these rulings. 

See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (“[A] 

facial challenge must fail where the statute has a ‘plainly legitimate sweep.’” (citation 

omitted)).

B. Dog Law Defendants’ Sovereign Immunity Under the Eleventh Amendment

The District Court concluded that “only Sixth Angel’s claims for injunctive relief 

and its personal capacity claims survive the Court’s Eleventh Amendment analysis with 

respect to . . . the Dog Law Defendants.” App. at 21. Specifically, the District Court 

dismissed (i) Sixth Angel’s claims against the Dog Bureau because Pennsylvania has not 

waived its sovereign immunity, (ii) Sixth Angel’s damages claims against West and 

Loughlin in their official capacities, and (iii) Sixth Angel’s federal damages claims 
9

against the Dog Law Defendants because state agencies and state officers acting in their 

official capacities are not “persons” within the meaning of § 1983. 

The District Court’s reasoning is sound. See Will v. Mich. Dep’t of State Police, 

491 U.S. 58, 71 (1989). Therefore, we will affirm the District Court’s dismissal of the 

claims against the Dog Bureau and the damages claims against West and Loughlin in 

their official capacities.11

C. Sixth Angel’s Standing to Seek Injunctive Relief

 

Sixth Angel obliquely argues that injunctions are appropriate because “West as 

Director and [the Dog Bureau] have sanctioned these seizures and established 

policies/procedures penalizing out-of-state dog rescues.” Appellant’s Br. at 67. The 

District Court dismissed Sixth Angel’s claims for injunctive relief for lack of standing,

explaining that “[a]t best, the Third Amended Complaint seeks the sort of ‘obey the law’ 

injunctions courts routinely decline to grant.” App. at 22. We again agree with the 

District Court’s reasoning and will affirm its dismissal of Sixth Angel’s claims for 

injunctive relief. See Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir. 1996) 

(“[A]ppellate courts will not countenance injunctions that merely require someone to 

‘obey the law.’” (citation omitted)).

D. Sixth Angel’s Associational Standing

 11 Sixth Angel argues that Pennsylvania waived sovereign immunity in 42 Pa. 

Cons. Stat. §§ 8522(b)(3), (6), & 8542(b)(8). See Appellant’s Br. at 68. This argument is 

without merit because this waiver does not apply to suits filed in federal court. See 42 

Pa. Cons. Stat. §8521(b) (“Nothing contained in this subchapter shall be construed to 

waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the 

Eleventh Amendment to the Constitution of the United States.”). 
10

The District Court held that Sixth Angel did not have associational standing to 

pursue the rights of its members including its counsel, Silva, because individualized 

claims for damages predominate, and many of its damages claims are not shared by all of 

its members. The District Court noted that “Sixth Angel’s pleadings conflate harm to the 

organization with injuries to various individual Sixth Angel members, particularly Silva 

herself.” App. at 24. 

We agree with the District Court’s conclusion in light of our decision in 

Pennsylvania Prison Society v. Cortes, 622 F.3d 215, 228 (3d Cir. 2010) (“An association 

has standing to bring suit on behalf of its members when; (a) its members would 

otherwise have standing to sue in their own right; (b) the interests at stake are germane to 

the organization's purpose, and (c) neither the claim asserted nor the relief requested 

requires the participation of individual members in the lawsuit.” (alteration accepted and 

citation omitted)). We also agree with the District Court’s holding that there is no thirdparty standing in this case given that Sixth Angel’s members can bring their own claims. 

See Nasir v. Morgan, 350 F.3d 366, 376 (3d Cir. 2003) (To successfully assert third-party 

standing, inter alia, “the third party must face some obstacles that prevent it from 

pursuing its own claims.”). 

E. Sixth Angel’s Remaining Damages Claims

The District Court characterized Sixth Angel’s remaining damages claims arising 

from injury to the Sixth Angel organization itself as follows: (1) Fourth Amendment and 

state law claims against Loughlin and West relating to the April 10, 2010 seizure of Sixth 

Angel’s dogs, (2) First Amendment expressive association and retaliation claims against 
11

all Defendants, (3) Fourth and Fourteenth Amendment claims arising from a zoning 

dispute with Marcus Hook, and (4) Fourth Amendment abuse of process claims against 

all Defendants.12

The District Court dismissed the Fourth Amendment and state law claims against 

Loughlin and West relating to the April 10, 2010 seizure of Sixth Angel’s dogs because 

West and Loughlin did not seize Sixth Angel’s dogs. Under the allegations in the Third 

Amended Complaint, PASPCA seized Sixth Angel’s dogs on April 10. The fact that 

 

 12 The District Court stated that it was “possible that Sixth Angel has buried 

further claims in its pleading beyond those identified in its eleven numbered counts,” 

explaining that “the Court observes that Sixth Angel alludes to other causes of action, 

including: various forms of conspiracy; defamation; equal protection; and harm to 

unspecified liberty interests and civil rights.” App. at 16 (citations omitted). The District 

Court granted Defendants’ requests to dismiss any such claims with prejudice “for 

repeated noncompliance with Rule 8.” App. at 17 (noting Sixth Angel had already been 

given the opportunity to amend its complaint to comply with Rule 8). 

This court reviews a district court’s decision to dismiss claims under Rule 8 for 

abuse of discretion. In Re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996) (“It 

is well settled that the question on review is not whether we would have imposed a more 

lenient penalty had we been sitting in the trial judge’s place, but whether the trial judge 

abused his discretion in imposing the penalty he did.” (internal quotation marks and 

citation omitted)). Sixth Angel argues that “the last Amended Complaint, and every 

preceding complaint, alleged specific facts and also legal allegations for claims of 

retaliatory government conduct, the conspiracy of the government parties, First and 

Fourth Amendment, Equal Protection Amendment and Substantive Due Process 

Amendment violations. . . .There is no requirement under Federal Rule of Civil 

Procedure 8 that claims and defendants be separated into counts. While that was the trial 

court’s preference, it is not a pleading requirement.” Reply Br. at 8. Because these 

claims were addressed by the District Court, Sixth Angel’s argument does not provide a 

basis for concluding that the Court erred by dismissing claims beyond the eleven 

numbered claims in Sixth Angel’s Third Amended Complaint for failure to comply with 

Rule 8. Therefore, this decision was not an abuse of discretion, and it will be affirmed.
12

PASPCA has now returned the dogs to Sixth Angel pursuant to a preliminary injunction 

in another case confirms that the dogs were in PASPCA’s possession.13

The District Court dismissed Sixth Angel’s First Amendment expressive 

association claim against all Defendants. Sixth Angel argues that “[c]itations for the 

‘transfer’ of dogs in public and/or behaviors of local borough officials in harassing foster 

families are significant interference in rescue activities which . . . should be freely 

permitted under free association guarantees.” Appellant’s Br. at 37. The District Court

concluded that this argument is apparently based on Sixth Angel’s belief that portions of 

the Pennsylvania Dog Law are unconstitutional, a contention that we have already 

rejected. Given that Sixth Angel has failed to demonstrate that complying with the 

Pennsylvania Dog Law will affect its ability to “promot[e] the humane treatment of 

animals and dog rescue,” Appellant’s Br. at 37, we will affirm the dismissal of Sixth 

Angel’s expressive association claim. 

 

 13 This court’s opinion affirming the District Court’s grant of the preliminary 

injunction described the relevant facts differently, as it stated: “the Pennsylvania Bureau 

of Dog Law Enforcement (“Dog Law”) intercepted and seized the vehicle and its 

contents, including [Sixth Angel’s three dogs]. Dog Law turned the three dogs over to 

the P[A]SPCA for the purpose of providing them with veterinary examinations. The 

P[A]SPCA retained the dogs despite Sixth Angel’s requests to have them returned to it.” 

Sixth Angel Shepherd Rescue, 448 F. App’x at 253. Based on the facts as alleged in Sixth 

Angel’s Third Amended Complaint in this case, it is not clear that the dogs were ever in 

the possession of Loughlin or the Dog Bureau. Even if Loughlin originally seized the 

dogs in order to inspect the transportation vehicle, he reasonably believed he was 

authorized to do so under 3 Pa. Stat. Ann. § 459-213, which states that “[a]ll vehicles 

being used to transport dogs are subject to inspection.” The PASPCA then maintained 

possession of the dogs until they were returned to Sixth Angel pursuant to the preliminary 

injunction.
13

Sixth Angel’s apparent First Amendment retaliation claim against all Defendants 

allegations fails to demonstrate the required causal connection between Sixth Angel’s 

protected activity and the Defendants’ actions. See Lauren W. ex rel. Jean W. v. 

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (Plaintiffs who assert a First Amendment 

retaliation claim must show, inter alia, that they “engaged in a protected activity,” and 

that there was “a causal connection between the protected activity and the retaliatory 

action.”).

The District Court also dismissed the Fourth and Fourteenth Amendment claims 

arising from Sixth Angel’s zoning dispute with Marcus Hook. Sixth Angel appears to 

argue that its rights under the Fourth Amendment were violated by the alleged loss of the 

use of its property, and that its procedural and substantive due process rights under the 

Fourteenth Amendment were violated through the zoning dispute with Marcus Hook. 

We agree with the District Court’s conclusions that Sixth Angel’s property was never 

seized, that Sixth Angel received sufficient process, and that the Marcus Hook Zoning 

Hearing Board did not violate Sixth Angel’s rights by refusing to reschedule the hearing 

for its case a fourth time to accommodate Sixth Angel’s counsel’s schedule.

Sixth Angel’s abuse of process claims against all Defendants were dismissed 

because Sixth Angel failed to link these claims to a constitutional injury caused by the 

Defendants. In support of its abuse of process claims, Sixth Angel argues that Marcus 

Hook “sought to spuriously cite and prosecute Sixth Angel and those associated with 

Sixth Angel.” Appellant’s Br. at 51. 
14

“Generally speaking, to recover under a theory of abuse of process, a plaintiff 

must show that the defendant used legal process against the plaintiff in a way that 

constituted a perversion of that process and caused harm to the plaintiff.” Gen. 

Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 304 (3d Cir. 2003). “To 

establish a claim for abuse of process [under Pennsylvania common law,] it must be 

shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to 

accomplish a purpose for which the process was not designed; and (3) harm has been 

caused to the plaintiff.” Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. Ct. 2008)

(“[T]here is no liability where the defendant has done nothing more than carry out the 

process to its authorized conclusion, even though with bad intentions.” (citation 

omitted)). 

Sixth Angel lacks associational or third party standing to pursue abuse of process 

claims on behalf of parties other than the organization itself. See supra Part II.D. The 

District Court properly concluded that Sixth Angel failed to link its abuse of process 

claims with an injury. 

III.

Sixth Angell’s Third Amended Complaint contains a shotgun of claims, none of 

which stands up to legal analysis, as the District Court noted and we agree. For the 

foregoing reasons, the District Court’s Order dismissing Sixth Angel’s Third Amended 

Complaint is affirmed.