PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDY BOGART, 

Plaintiff-Appellant,

v.

ROBBIE CHAPELL, in his individual

and official capacities; YORK

COUNTY HUMANE SOCIETY, in its

individual and official capacities;

YORK COUNTY SHERIFF’S

DEPARTMENT; YORK COUNTY ANIMAL

CONTROL; KATHY SOWELL; ARTHUR  No. 03-2092

MOORE; DONALD BARNETT; M. B.

MABRY; LESTER TERRY, in their

individual and official capacities;

BRUCE M. BRYANT, as Sheriff of

York County; COUNTY OF YORK,

Defendants-Appellees,

and

DELLA MARTIN; DARLENE STEER,

Defendants. 

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Cameron McGowan Currie, District Judge.

(CA-01-467-0)

Argued: June 4, 2004

Decided: February 2, 2005

Before WILLIAMS and KING, Circuit Judges,

and Louise W. FLANAGAN, United States District Judge for the

Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Flanagan joined. Judge Williams wrote a dissenting

opinion. 

COUNSEL

ARGUED: Kevin Roger Eberle, ROSEN, ROSEN & HAGOOD,

L.L.C., Charleston, South Carolina, for Appellant. Andrew Frederick

Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A.,

Columbia, South Carolina, for Appellees. ON BRIEF: Mary Ann

Hall, Charleston, South Carolina, for Appellant. Terry B. Millar,

TERRY B. MILLAR, L.L.C., Rock Hill, South Carolina; R. Bryan

Barnes, Thomas McRoy Shelley, III, Katherine B. Barroll, ROGERS,

TOWNSEND AND THOMAS, P.C., Columbia, South Carolina, for

Appellees. 

OPINION

KING, Circuit Judge: 

Judy Bogart appeals from the district court’s award of summary

judgment on her procedural due process claim, initiated under 42

U.S.C. § 1983, in connection with the euthanization of more than two

hundred dogs and cats seized from her residential property. Bogart’s

appeal calls upon us to analyze and apply the decisions of the

Supreme Court in Parratt v. Taylor, 451 U.S. 527 (1981), Hudson v.

Palmer, 468 U.S. 517 (1984), and Zinermon v. Burch, 494 U.S. 113

(1990). In each of those cases, the Court evaluated the viability of a

§ 1983 claim that state employees, disregarding established state procedures, had deprived the plaintiff of property or liberty without a

prior hearing, in contravention of the procedural aspects of the Fourteenth Amendment’s Due Process Clause. The Court held in Parratt

and Hudson that such a deprivation cannot be challenged under

§ 1983 if the employees’ conduct was random and unauthorized —

rendering it impracticable for the State to provide a predeprivation

hearing — so long as the State has provided for an adequate postdeprivation remedy. Hudson, 468 U.S. at 533; Parratt, 451 U.S. at 541.

2 BOGART v. CHAPELL
The Court elaborated on this rule in Zinermon, explaining that the

Parratt/Hudson doctrine is not applicable if the State had accorded its

employees broad power and little guidance in effecting the deprivation. Zinermon, 494 U.S. at 135. 

Relying on the Parratt/Hudson doctrine, the district court held that

Bogart did not possess a viable § 1983 claim, because the destruction

of her animals was in contravention of procedures spelled out in the

South Carolina Code (and thus out of the State’s control), and because

the State’s postdeprivation remedies were sufficient to compensate

Bogart for her losses. See Bogart v. County of York, No. 01-CV-467,

slip op. at 12-15 (D.S.C. July 11, 2003) (the "Summary Judgment

Order"). Bogart maintains on appeal that her claim is saved by the

Zinermon principle, in view of a locally adopted policy conferring

discretion on an official to euthanize animals deemed to be sick or

injured. As explained below, we reject Bogart’s contention and affirm

the district court. 

I.

A.

Over several years, Bogart participated in animal rescue activities

through various volunteer organizations in and around Rock Hill,

South Carolina, including a group called Carolina Castaways.

Bogart’s efforts involved adopting dogs and cats from shelters where

they otherwise may have been euthanized. Bogart kept the animals

inside and outside her single-wide mobile home, which had a small

fenced backyard. In late 1998 and throughout 1999, the York County

Humane Society (the "YCHS") and its board co-chairman, local veterinarian Robbie Chappell,1

 received complaints from other local veterinarians and members of Carolina Castaways regarding the number

and condition of animals in Bogart’s care, including personal pets and

animals belonging to Carolina Castaways. Dr. Chappell met with

Bogart at her home in late June 1999 to counsel her concerning the

animals, but the complaints continued. 

1While Dr. Chappell was referred to as "Chapell" in district court documents, the parties refer to him on appeal as "Chappell," the spelling we

utilize herein. 

BOGART v. CHAPELL 3
In early November 1999, after observing twice as many dogs in

Bogart’s yard as had been there in June, Dr. Chappell requested Deputy Brent Mabry of the York County Sheriff’s Department to investigate the situation. Deputy Mabry drove by Bogart’s property, at

which time he smelled a strong animal odor and heard a large number

of barking dogs. Bearing in mind Dr. Chappell’s admonition that

Bogart was unlikely to voluntarily permit examination of the animals,

Mabry decided to request a search warrant from a local magistrate

judge. On November 16, 1999, the magistrate judge issued a warrant

for the search of Bogart’s residential property and the seizure of any

animals there that had been mistreated or housed improperly. Dr.

Chappell planned to accompany Mabry in executing the search warrant. Mabry knew that Dr. Chappell intended to immediately euthanize at least some of the animals, but did not share that information

with the judge. 

Deputy Mabry also conferred about the search, which was scheduled for November 17, 1999, with Lester Terry, the supervisor of

York County Animal Control. Officer Terry had been contacted as

well by Dr. Chappell, who had advised Terry to "have a lot of trucks

ready" based on the assumption that many of the animals would be

seized. Dr. Chappell and Terry later disagreed over whether their first

conversation about the impending seizure occurred as long as a week

or just two days before the event. However, they agreed that Dr.

Chappell estimated that Bogart had at least eighty to ninety animals

on her premises. They also agreed that Dr. Chappell anticipated that

at least some of the animals would be euthanized immediately, and

others might be housed by the YCHS and the York County Animal

Shelter (the "Shelter") if space was available for them. According to

Officer Terry, Dr. Chappell called him again on the day of the seizure; when Terry informed Dr. Chappell that the Shelter was nearly

at full capacity, Dr. Chappell said that all of the animals to be taken

from Bogart’s property were diseased and needed to be euthanized

anyway. There is no dispute that Dr. Chappell, at that time, had not

closely examined the animals. 

The search and seizure at Bogart’s mobile home was executed on

November 17, 1999, as planned. The participants included Dr. Chappell and at least one of his employees, representatives of the YCHS,

Deputy Mabry and other law enforcement officers, and Officer Terry

4 BOGART v. CHAPELL
and other animal control officers. At first, Deputy Mabry did not

serve the search warrant on Bogart, because she allowed Mabry, Dr.

Chappell, and those accompanying them to examine and even remove

some of the approximately twenty-five dogs in her backyard. Thereafter, however, Bogart began to move dogs into her home through the

back door. Mabry then confronted Bogart at the front door, serving

her with the search warrant so that there could be an examination of

the animals inside the home. According to Mabry, Bogart made an

effort to reenter the home in an evasive manner, prompting Mabry

and others to handcuff her and escort her to a waiting patrol car.

Bogart was then arrested for ill treatment of the animals, in violation

of section 47-1-40 of the South Carolina Code.2 The remainder of

Bogart’s dogs and cats were subsequently removed from inside the

home. 

In total, 82 dogs and 129 cats were seized from Bogart’s property.

All but two of the dogs and some of the cats had been euthanized by

the following morning. At that time, Bogart arrived at the Shelter and

requested some of her pets. Officer Terry called Dr. Chappell, who

gave permission for Bogart to take the two surviving dogs and her

choice of five of the remaining cats. Those cats not selected were

killed later that morning. 

Neither Dr. Chappell, who allegedly ordered the euthanizations,

nor Officer Terry, who oversaw the procedures, would accept the ultimate responsibility for deciding the animals’ fates. Dr. Chappell

informed the press just after the raid on Bogart’s property that her animals had been killed because of their poor health, as well as space

limitations at the Shelter. However, it does not appear that all, or even

many, of the more than two hundred doomed animals were closely

examined by Dr. Chappell or any other veterinarian prior to euthanization. Rather, Dr. Chappell quickly inspected some of the animals

as they were being removed from Bogart’s property. Dr. Chappell

conceded in this litigation that, if he had examined the dogs once they

arrived at the Shelter, as many as fifteen to twenty of them might have

been found healthy enough to save. Moreover, an expert for the

Defendants opined that, if space at the Shelter was a problem, some

2Bogart was released from custody a few hours after her arrest, and the

charge against her was subsequently nolle prossed. 

BOGART v. CHAPELL 5
of the animals could have remained on Bogart’s property for at least

another day without "much more jeopardy than they were already in"

until room could be found for them elsewhere. In any event, it was

not disputed that this was the first and only time that York County

officials had immediately — and, one could find, indiscriminately —

destroyed animals that had just been seized in conjunction with the

arrest of their custodian for mistreatment of them.

On January 8, 2001, Bogart filed a complaint in the York County

Court of Common Pleas against various participants in the search of

her property, her arrest, and the seizure and euthanization of her animals, including Dr. Chappell, the YCHS, Deputy Mabry, and Officer

Terry (collectively, the "Defendants"). In Bogart’s complaint, which

was amended on March 7, 2001, she asserted federal constitutional

claims under 42 U.S.C. § 1983. These included the claim that her procedural due process rights were violated when the Defendants

destroyed her dogs and cats without a predeprivation hearing. Bogart

also alleged state law causes of action for violation of South Carolina’s constitution and for the tort of outrage. 

The Defendants removed the litigation, on February 16, 2001, to

the District of South Carolina, which possessed jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1367(a). Following discovery, the Defendants moved for summary judgment on all claims. On April 17, 2002,

the court heard argument on the Defendants’ motions and, by a bench

ruling, granted summary judgment as to all claims against two of the

Defendants, Darlene Steer and Della Martin, both members of the

YCHS. See Record on Appeal at 36. The court also awarded summary

judgment as to Bogart’s outrage claim against the other Defendants

in their official capacities. Id.

Bogart subsequently filed a second amended complaint, naming a

new Defendant and altering some of her claims. On September 27,

2002, the Defendants moved again for summary judgment. The court

heard argument on these motions on July 2, 2003, and promptly

granted summary judgment to all Defendants on Bogart’s § 1983

claims, including the procedural due process claim that is the subject

of this appeal. Summary Judgment Order at 2-3. Relevantly, the court

concluded that Bogart’s procedural due process claim was not viable

under the Parratt/Hudson doctrine, because, inter alia, the euthaniza6 BOGART v. CHAPELL
tion of Bogart’s animals was in contravention of nondiscretionary

procedures set forth in the South Carolina Code. Id. at 12.3 Additionally, because the procedural due process and other § 1983 claims were

the sole source of federal jurisdiction, the court remanded the balance

of the litigation to the state court. Id. at 3. 

The district court’s judgment order was entered on July 16, 2003.

Bogart thereafter filed a motion, on July 21, 2003, seeking to alter or

amend the judgment pursuant to Rule 59(e) of the Federal Rules of

Civil Procedure (the "Rule 59(e) Motion") with regard to the procedural due process claim against Officer Terry. In her supporting memorandum, Bogart asserted new evidence — a York County Animal

Control policy according Officer Terry, as the Animal Control Officer, the discretion to dispose of sick or injured animals (the "York

County Policy") — that was available when the court was considering

summary judgment issues but that was not then presented to the court.

The court denied the Rule 59(e) Motion. Bogart v. County of York,

No. 01-CV-467, slip op. at 3 (D.S.C. Aug. 8, 2003) (the "Rule 59(e)

Order"). 

Bogart filed her notice of appeal on August 28, 2003, and we possess jurisdiction under 28 U.S.C. § 1291. She has limited her appeal

to the contention that the district court erred in relying on the Parratt/Hudson doctrine to award summary judgment to the Defendants

on her procedural due process claim, and she requests this Court, in

weighing her appeal, to consider the York County Policy she first

introduced with her Rule 59(e) Motion. 

3Under various provisions of the South Carolina Code regarding cruelty to animals, law enforcement officers and humane society agents who

seize animals are required to care for them pending the outcome of civil

or criminal court proceedings. If the court rules that the owner is fit to

have custody of the animal, it is to be returned to the owner. Or, if the

owner is convicted of an animal cruelty charge, she forfeits custody of

the animal. Only then is the officer or agent authorized to make "humane

disposition" of the animal (which presumably includes the option of

euthanization). See S.C. Code Ann. §§ 47-1-120, -140, -150, -170. 

BOGART v. CHAPELL 7
II.

As a preliminary matter, we are obliged to identify those particular

matters over which we possess jurisdiction. That is, the Defendants

contend that our review is limited to the Summary Judgment Order,

because Bogart’s notice of appeal specifies that she is appealing from

that order.4 They maintain that we cannot review the Rule 59(e)

Order, because the notice of appeal does not mention it, and Bogart

did not explicitly state in her opening brief that the court erred in

denying her Rule 59(e) Motion. Thus, according to the Defendants,

we cannot consider the new evidence (the York County Policy) that

Bogart attempted to introduce by way of her Rule 59(e) Motion. 

Under the Federal Rules of Appellate Procedure, an appellant must

"designate the judgment, order, or part thereof being appealed" in her

notice of appeal. Fed. R. App. P. 3(c)(1)(B). The Supreme Court has

construed Rule 3 as jurisdictional in nature. See Torres v. Oakland

Scavenger Co., 487 U.S. 312, 317 (1988). However, "[i]n order to

avoid technical impediments to appellate review, we construe Rule

3(c) liberally." Canady v. Crestar Mortgage Corp., 109 F.3d 969, 974

(4th Cir. 1997). Therefore, "an error in designating the issue appealed

will not result in a loss of appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced

by the mistake." Id. (citations and internal quotation marks omitted);

see also Dang v. Comm’r, 259 F.3d 204, 207-08 (4th Cir. 2001). The

appellant simply needs to address the merits of a particular issue in

her opening brief in order to demonstrate that she had the intent to

appeal that issue and the appellees were not prejudiced by her mistake, inasmuch as they had notice of the issue and the opportunity to

fully brief it. Canady, 109 F.3d at 974 (citations omitted). 

Although we do not commend the careless formulation of Bogart’s

notice of appeal, we must conclude that Bogart’s intent to appeal from

4The notice of appeal states that Bogart appeals "from the Order granting Defendants’ Motion for Summary Judgment and remanding the case

which was entered in this action on July 21, 2003." The Summary Judgment Order actually was entered, however, on July 11, 2003. The Defendants concede that the date reflected in the notice of appeal was simply

a "scrivener’s error." 

8 BOGART v. CHAPELL
the Rule 59(e) Order can be readily inferred from the discussion in

her opening brief of the York County Policy’s effects on the viability

of her § 1983 procedural due process claim. That discussion sufficiently informed the Defendants that Bogart was challenging the

court’s denial of her Rule 59(e) Motion. The Defendants had the

opportunity to fully brief the relevant issues and, indeed, they did so.

Therefore, the Defendants were not prejudiced by the mistakes in

Bogart’s notice of appeal, and we may properly consider the denial

of Bogart’s Rule 59(e) Motion. 

III.

We review the district court’s denial of the Rule 59(e) Motion for

abuse of discretion. See United States v. Westinghouse Savannah

River Co., 305 F.3d 284, 290 (4th Cir. 2002). As we have observed,

a court may grant a Rule 59 motion in three circumstances: "‘(1) to

accommodate an intervening change in controlling law; (2) to account

for new evidence not available at trial; or (3) to correct a clear error

of law or prevent manifest injustice.’" Id. (quoting Pac. Ins. Co. v.

Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)). 

By contrast, we review de novo the court’s award of summary

judgment to the Defendants, viewing the facts and inferences drawn

therefrom in the light most favorable to Bogart. See Seabulk Offshore,

Ltd. v. Am. Home Assurance Co., 377 F.3d 408, 418 (4th Cir. 2004).

"An award of summary judgment is appropriate only ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, . . . show that there is no genuine issue

of material fact and that the moving party is entitled to a judgment as

a matter of law.’" Id. (quoting Fed. R. Civ. P. 56(c)) (alteration in

original). 

We begin our review by summarizing the Summary Judgment

Order and the Rule 59(e) Order. We then consider whether the district

court abused its discretion in denying Bogart’s Rule 59(e) Motion, by

which she sought to introduce the York County Policy as new evidence in opposition to summary judgment. Because the denial of the

Rule 59(e) Motion was not error, we subsequently address, without

regard to the new evidence, whether the award of summary judgment

to the Defendants was appropriate under the Parratt/Hudson doctrine.

BOGART v. CHAPELL 9
In so doing, we survey the relevant Supreme Court decisions and

explain why the Parratt/Hudson doctrine precludes Bogart’s procedural due process claim, despite her attempt to rely on the Zinermon

principle. 

IV.

In its Summary Judgment Order, the district court set forth the core

requirement for Bogart’s claims under § 1983, that she was "‘deprived of a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under color of

state law.’" Summary Judgment Order at 7 (quoting Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). With regard to

Bogart’s procedural due process claim in particular, the court recognized that the Fourteenth Amendment "provides that no State shall

‘deprive any person of life, liberty, or property, without due process

of law,’" id. (quoting U.S. Const. amend. XIV, § 1), and that the fundamental requirement of due process is the opportunity to be heard

"‘at a meaningful time and in a meaningful manner’" (usually prior

to the deprivation of a protected interest), id. at 7-8 (quoting Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) (other citations and internal

quotation marks omitted). The court specifically acknowledged

Supreme Court precedent holding that a person may possess a property interest in an animal, but that a property interest in an animal is

of a qualified nature subject to the legitimate exercise of the State’s

police powers. Id. at 8 (citing Nicchia v. New York, 254 U.S. 228, 230

(1920); Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698,

705 (1897)). The court also referred to decisions from other federal

and state courts recognizing that, absent exigent circumstances, a person has a right to due process prior to the destruction of her animal.

Id. at 8-9 (citing Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir.

1996); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir. 1993)) (other

citations omitted). 

The court noted that, in this matter, it is undisputed that the Defendants failed to provide Bogart with notice or an opportunity to be

heard before the euthanization of her dogs and cats, and that, in the

light most favorable to Bogart, there were no exigent circumstances

justifying the immediate destruction of her animals. Summary Judg10 BOGART v. CHAPELL
ment Order at 9.5

 Nonetheless, relying on the Parratt/Hudson doctrine, the court concluded that Bogart could not sustain her procedural

due process claim. Id. at 9-16. The court explained that, where a

deprivation of property is the result of a state employee’s random and

unauthorized act, the Constitution requires only adequate postdeprivation tort remedies, and not a predeprivation hearing. Id. at 10 (citing

Zinermon, 494 U.S. at 128; Parratt, 451 U.S. at 541). 

The court observed that the Defendants failed to abide by the procedures that South Carolina had in place for the care and disposition

of animals seized from their owners, particularly section 47-1-150(F)

of the South Carolina Code. Summary Judgment Order at 12.6 The

5The court did not address the contention of some of the Defendants,

including Dr. Chappell, that they were not state actors. For purposes of

this appeal, the Defendants do not dispute that each of them acted under

color of state law. 

6The court noted that the Defendants took custody of Bogart’s animals

pursuant to section 47-1-150(C) (allowing seizure by court order preceding owner’s arrest), or alternatively section 47-1-120 (authorizing, along

with section 47-1-140, seizure upon owner’s arrest), or both sections 47-

1-150(C) and -120. Summary Judgment Order at 12 n.7. A seizure under

any of these statutory provisions appears to be subject to the protections

of section 47-1-150(F), which provides: 

The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society

incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either:

(1) The owner is adjudged by the court to be able to provide

adequately for, and have custody of, the animal, in which case

the animal shall be returned to the owner upon payment for the

care and provision of the animal while in the agent’s or officer’s

custody; or 

(2) The animal is turned over to the officer or agent as provided in Section 47-1-170 [providing for the owner’s forfeiture

of the animal upon conviction on an animal cruelty charge] and

a humane disposition of the animal is made. 

The parties disagree on appeal over precisely which statutory provisions applied to the seizure of Bogart’s animals. However, we need not

BOGART v. CHAPELL 11
court concluded that the Defendants’ conduct in immediately

euthanizing Bogart’s animals was random and unauthorized, and the

State could not have foreseen that the Defendants would contravene

state law and ignore established procedures. Id. at 13. Based on the

additional determination that South Carolina’s postdeprivation tort

remedies were adequate to compensate Bogart for her losses,7 the

court held that Bogart’s procedural due process claim is precluded by

the Parratt/Hudson doctrine. Id. at 13-15. 

In awarding summary judgment to the Defendants, the court

rejected Bogart’s contention that this case is like Zinermon. There, the

Supreme Court declined to disallow a procedural due process claim

under the Parratt/Hudson doctrine where the plaintiff "sought to hold

‘state officials accountable for their abuse of their broadly delegated,

uncircumscribed power to effect the deprivation at issue.’" Summary

Judgment Order at 12 (quoting Zinermon, 494 U.S. at 136). The court

distinguished Zinermon on the ground, inter alia, that these Defendants were not given authority under the South Carolina Code to

destroy Bogart’s animals immediately after seizing the animals and

merely arresting Bogart on an animal cruelty charge. Id. at 13. 

In support of her subsequent Rule 59(e) Motion, Bogart presented

the York County Policy, which, she contended, empowered Officer

Terry with broad discretion to destroy sick and injured animals.8

decide that issue. All of the provisions required the Defendants to care

for Bogart’s dogs and cats pending court adjudication of the criminal

charge against her and/or of her fitness to regain custody of the animals.

And none of the provisions authorized the Defendants to euthanize the

animals immediately after their seizure. 

7The court pointed to the Defendants’ concessions that Bogart possessed viable state causes of action against them for negligence and conversion/trespass to chattels, and that she could recover damages for

emotional distress inasmuch as evidence existed to show that she had

suffered physical harm as a result of the loss of her animals. Summary

Judgment Order at 13-14. 

8The York County Policy, entitled "Animals Sick or Injured," provides

in full: 

12 BOGART v. CHAPELL
Bogart maintained, in relevant part, that the Parratt/Hudson doctrine’s exception to § 1983 liability for random and unauthorized acts

was inapplicable in this case because, while the Defendants’ conduct

violated the South Carolina Code, Officer Terry was simultaneously

authorized by the York County Policy to exercise discretion to

euthanize her animals. 

The court denied the Rule 59(e) Motion for reasons proffered by

the Defendants. See Rule 59(e) Order at 3. First, the York County

Policy constituted new evidence that was available, but not presented

to the court or made part of the record, when the court considered the

summary judgment motions. Second, the Policy was never properly

authenticated; for example, there was no indication in the record that

the Policy was even in effect at the time of the seizure of Bogart’s

animals. Third, by its plain terms, the Policy authorized immediate

euthanization of animals only in exigent circumstances, and the court

already had concluded that there were no such circumstances. And

fourth, the Policy could not apply to the destruction of Bogart’s animals, because it would have allowed Officer Terry to exercise his discretion only when an animal was brought into the Shelter after normal

working hours, and the seizure of Bogart’s dogs and cats undeniably

began during normal working hours. On these grounds, the court concluded that the Rule 59(e) Motion "neither argues that an intervening

change in the law has occurred or that new evidence has come to

light, nor raises any meritorious grounds showing that reversal of the

Court’s July 11, 2003 [Summary Judgment Order] is necessary to correct a clear error of law or prevent manifest injustice." Rule 59(e)

Order at 3. 

If a sick or injured animal is brought into the shelter during normal working hours, then the animal will be taken to the closest

vet. If one is picked up after normal working hours then the Animal Control Officer will make the decision as to the fate of the

animal. If the animal has an I.D. tag with the animals [sic] vet,

then you should first make every effort to contact the vet. At no

time should the animal go through unnecessary suffering if delay

exists on contacting the vet. 

Record on Appeal at 78. 

BOGART v. CHAPELL 13
V.

We now assess whether the district court abused its discretion in

denying Bogart’s Rule 59(e) Motion. Because that ruling was not

error, we subsequently consider, without regard to the York County

Policy, whether the award of summary judgment to the Defendants

was proper.

A.

We will not reverse a court’s refusal to consider new evidence in

support of a Rule 59(e) motion where the movant presented no legitimate justification for failing to timely submit the evidence and had

advance notice of the summary judgment issues. See Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th Cir. 1995) (offering no reason at all);

Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d

390, 395 (4th Cir. 1994) (believing presentation of affidavit was "unnecessary" at summary judgment stage); RGI, Inc. v. Unified Indus.,

Inc., 963 F.2d 658, 662 (4th Cir. 1992) (misunderstanding parties’

burdens under summary judgment standard). Bogart’s excuse for not

submitting the York County Policy to the court prior to its consideration of the summary judgment motions is that her attorneys did not

foresee that the court would rely on the Parratt/Hudson doctrine to

reject her procedural due process claim. That is, counsel believed that

the court would focus instead on whether Bogart’s claim failed on the

ground that the euthanization of her animals was justified by the existence of exigent circumstances. This assertion does not constitute a

legitimate justification for Bogart’s neglect to promptly present the

Policy to the court, especially in view of the fact that the applicability

of the Parratt/Hudson doctrine was an issue raised early and often in

this litigation. 

Generally, we will not examine evidence, such as the York County

Policy, that was inexcusably proffered to the district court only after

the court had entered its final judgment. See Kaiser Aluminum &

Chem. Corp. v. Westinghouse Elec. Corp., 981 F.2d 136, 140 (4th Cir.

1992) (recognizing rule "that affidavits and exhibits not before the

court in making its decision are not to be considered on appeal").

Even so, we may examine such evidence in order to determine

whether "the additional evidence, though filed untimely, indicate[s]

14 BOGART v. CHAPELL
that the decision under review, if upheld, would result in a miscarriage of justice." Id.; see also Hughes, 48 F.3d at 1384 n.7. Our examination of the new evidence in this appeal is not helpful to Bogart,

however. Bogart has not shown that the Policy was even in place

when her dogs and cats were seized, much less that Officer Terry

relied on it. Moreover, the Policy did not authorize Officer Terry to

decide during normal working hours to euthanize Bogart’s animals

under nonexigent circumstances.9 Because the Policy did not sanction

Officer Terry’s conduct, we reject Bogart’s contention that this new

evidence could preclude application of the Parratt/Hudson doctrine to

her § 1983 procedural due process claim against him. Accordingly,

we affirm the court’s denial of her Rule 59(e) Motion.

B.

Without regard to the York County Policy, we turn to the question

of whether the court erred in relying on the Parratt/Hudson doctrine

to award summary judgment to the Defendants on Bogart’s § 1983

claim. Specifically, we survey the relevant Supreme Court decisions

in Parratt, Hudson, and Zinermon. We then explain why, in view of

that controlling precedent, Bogart cannot establish her claim for

deprivation of her animals in contravention of the procedural aspects

of the Due Process Clause of the Fourteenth Amendment.

1.

In its 1981 Parratt decision, the Supreme Court considered

whether an inmate at a Nebraska prison, who ordered $23.50 worth

of hobby materials by mail, could sustain a § 1983 procedural due

process claim for the negligent loss of the materials by prison officials. 451 U.S. at 529. The Court was concerned with, inter alia,

whether it was practicable for the State to provide a predeprivation

9The Policy arguably conferred discretion on the Animal Control Officer to euthanize sick or injured animals picked up after normal working

hours, regardless of exigent circumstances. Plainly, however, the Animal

Control Officer was empowered to decide an animal’s fate during normal

working hours only under exigent circumstances, i.e., if the animal

would unnecessarily suffer as the result of delay in contacting a veterinarian to examine it. See supra note 8. 

BOGART v. CHAPELL 15
hearing, and whether the postdeprivation tort remedies provided by

the State were constitutionally sufficient. Id. at 537-44. The Court

concluded that the prisoner did not possess a viable § 1983 claim

because, in relevant part, "the deprivation did not occur as a result of

some established state procedure" but rather "as a result of the unauthorized failure of agents of the State to follow established state procedure," and because "the State of Nebraska has provided respondent

with the means by which he can receive redress for the deprivation."

Id. at 543. Of key significance, the loss of the prisoner’s property was

the "result of a random and unauthorized act by a state employee." Id.

at 541. The Court explained that, because the State could not predict

precisely when such a loss would occur, the State could not be

expected to provide a meaningful predeprivation hearing. Id.

The Court extended its Parratt holding, in its 1984 Hudson decision, to intentional deprivations of property. Hudson, 468 U.S. at 533.10

The plaintiff in Hudson, an inmate at a Virginia prison, alleged that

a correctional officer had intentionally destroyed some of the prisoner’s noncontraband property during a search of his cell. Id. at 519-20.

The lower courts, including this Court, had concluded that the logic

of Parratt applied equally to unauthorized intentional deprivations of

property by state employees. Id. at 520-21 (citing 697 F.2d 1220,

1223 (4th Cir. 1983)). The Supreme Court agreed, explaining that

"[t]he underlying rationale of Parratt is that when deprivations of

property are effected through random and unauthorized conduct of a

state employee, predeprivation procedures are simply ‘impracticable’

since the state cannot know when such deprivations will occur." Id.

at 533. Thus, under the Parratt/Hudson doctrine, such a deprivation

"does not constitute a violation of the procedural requirements of the

Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available." Id.

10Parratt was later overruled in part by Daniels v. Williams, 474 U.S.

327, 330-31 (1986), to the extent that it held that mere negligence on the

part of a state employee may "deprive" one of a protected interest under

the Due Process Clause. Because Bogart alleges that the Defendants

intentionally deprived her of her cats and dogs, the Daniels rule is not

relevant to our consideration of the viability of Bogart’s procedural due

process claim. 

16 BOGART v. CHAPELL
In its 1990 Zinermon decision, the Court underscored the narrow

scope of the Parratt/Hudson doctrine. The Zinermon plaintiff brought

suit under § 1983, alleging that various personnel at a Florida state

hospital had deprived him of his liberty without due process by admitting him to the hospital as a "voluntary" mental patient despite his

incompetency to give informed consent, instead of utilizing involuntary admission procedures. 494 U.S. at 114-15. The plaintiff contended that the hospital personnel abused the sweeping power that had

been conferred on them by Florida’s statutory scheme for admitting

mental patients. Id. at 123-24, 136. Relying on the Parratt/Hudson

doctrine, the hospital personnel countered that the plaintiff failed to

state a § 1983 procedural due process claim because he alleged only

a random, unauthorized violation of the statutes, and because adequate state remedies for unlawful confinement were available to him.

Id. at 130 & n.15. However, the Zinermon Court concluded that the

Parratt/Hudson doctrine did not control the dispute before it "for

three basic reasons," all arising from the State’s bestowal on hospital

personnel of broad authority, with minimal guidance, in admitting

mental patients. Id. at 136. Those reasons were: (1) that the deprivation of plaintiff’s liberty was not "unforeseeable"; (2) that predeprivation process was not "impossible"; and (3) that the hospital personnel

could not characterize their conduct as "unauthorized" within that

term’s meaning in Parratt and Hudson. Id. at 136-38, applied in

Plumer v. Maryland, 915 F.2d 927, 929-31 (4th Cir. 1990); Fields v.

Durham, 909 F.2d 94, 96-97 (4th Cir. 1990).11

11We respectfully disagree with our dissenting colleague, under whose

view our application of the Zinermon principle in Plumer and Fields

essentially bars us from applying the Parratt/Hudson doctrine to any procedural due process claim. In both Plumer and Fields, the state actors

(like those in Zinermon) were empowered by the State with the authority

to effect the deprivations at issue and the duty to provide the plaintiffs

with predeprivation procedural safeguards. See Plumer, 915 F.2d at 931;

Fields, 909 F.2d at 97. Thus, our colleague’s analysis of the reach of

Plumer and Fields is suited only for disputes involving similar delegations of power. Those situations "create[ ] enormous line-drawing problems" for courts obliged to determine whether the breadth of the

delegated power was sufficient to impose § 1983 liability for its misapplication. Zinermon, 494 U.S. at 147-48 (O’Connor, J., dissenting). 

However, as Justice O’Connor (joined by three of her colleagues) recognized in her Zinermon dissent, "in the absence of . . . broadly delegated

BOGART v. CHAPELL 17
2.

Under the principles enunciated by the Supreme Court, we are constrained to conclude that this dispute fits squarely within the Parratt/Hudson doctrine, and, thus, that the district court properly

awarded summary judgment to the Defendants on Bogart’s § 1983

procedural due process claim. The doctrine controls the viability of

Bogart’s claim because the euthanization of Bogart’s animals by the

Defendants was random and unauthorized, and because, as Bogart

does not dispute on appeal, South Carolina affords a meaningful postdeprivation remedy for the loss of her animals. See Hudson, 468 U.S.

at 533; Parratt, 451 U.S. at 541. We reject as unavailing Bogart’s

contention that her claim is saved by the Zinermon principle. As

explained below, the three factors that caused the Zinermon Court not

to apply the Parratt/Hudson doctrine in that case, do not exist here.

See Zinermon, 494 U.S. at 136-38. 

First, the deprivation of Bogart’s animals, unlike the deprivation of

the Zinermon plaintiff’s liberty, was unforeseeable. In Zinermon,

because the State did not specify how to determine whether a patient

was competent at the time he was asked to sign admission forms, it

was "hardly unforeseeable" that the patient’s apparent willingness to

be admitted would be taken at face value. 494 U.S. at 136. Indeed,

the State knew precisely when any resulting erroneous deprivation

would occur: "at a specific, predictable point in the admission process

— when a patient is given admission forms to sign." Id. That forepower . . . Parratt and Hudson still govern." Id. at 148; see also Albright

v. Oliver, 510 U.S. 266, 284-85 (1994) (Kennedy, J., concurring in judgment) (observing that, though courts "have been cautious in invoking the

rule of Parratt," the decision’s "precedential force must be acknowledged"). Indeed, in Plumer and Fields, we acknowledged the continuing

vitality of the Parratt/Hudson doctrine, albeit in limited situations.

Plumer, 915 F.2d at 930; Fields, 909 F.2d at 97. Because the doctrine

remains sound law, we are bound to apply it in appropriate circumstances. See Carolina Cotton Growers Ass’n, Inc. v. United States, 785

F.2d 1195, 1200 (4th Cir. 1986). And, at the very least, those circumstances include cases (such as this one) where state actors have divested

plaintiffs of their property or liberty without any state-conferred power.

See infra Part V.B.2. 

18 BOGART v. CHAPELL
seeability is in contrast to the deprivations of property in Parratt and

Hudson, as well as in this dispute. The South Carolina Code prescribed precisely how the Defendants were to act once they seized

Bogart’s dogs and cats: the Defendants had no choice but to care for

the animals, and were not under any circumstances permitted to

euthanize them, until after a state court adjudicated Bogart’s custody

rights. See supra notes 3 & 6. Because the Defendants lacked authority to destroy the animals immediately upon their seizure (and

because such an incident had not previously occurred), the State could

not predict this deprivation. Cf. Zinermon, 494 U.S. at 136 (noting

State’s predicament in Parratt and Hudson, that it might have anticipated employee’s occasional negligent loss or intentional destruction

of prisoner’s property, but it could not have known precisely when

such loss would occur). 

Second, this dispute diverges from Zinermon in that predeprivation

process was impossible here. The State in Zinermon had provided

some procedures for the voluntary and involuntary admission of

patients to mental hospitals, but failed to sufficiently limit and guide

the hospital personnel’s power. 494 U.S. at 136-37. The plaintiff’s

grievance was that the hospital personnel, in exercising their discretion within the statutory scheme, failed to ensure that the proper procedures were followed and that the plaintiff received all of the

constitutional process that he was due. Id. at 137. Thus, "had the State

limited and guided [the hospital personnel’s] power to admit patients,

the deprivation might have been averted." Id. The plaintiff did not

allege that the hospital personnel had engaged in conduct like that of

the correctional officer in Hudson or of the Defendants in this case,

in that the hospital personnel were not bent upon depriving the plaintiff of his liberty and would not have done so despite predeprivation

safeguards. Id.

By contrast, South Carolina did not fail to sufficiently limit the

Defendants’ discretion in euthanizing Bogart’s animals immediately

after their seizure. Rather, the State withheld any such discretion at

all from the Defendants. For predeprivation process to be deemed feasible under these circumstances, it would have to be concluded that

the State was required to afford a "preliminary" hearing — prior to

the court proceedings already provided for by statute — to determine

whether the Defendants should destroy Bogart’s animals in violation

BOGART v. CHAPELL 19
of their mandate to care for them. Such a conclusion would, of course,

be absurd.12

Finally, this dispute is unlike Zinermon because the Defendants’

euthanization of Bogart’s animals is properly characterized as unauthorized, in the sense that term was used in Parratt and Hudson. The

State in Zinermon had delegated to the hospital personnel "the power

and authority to effect the very deprivation complained of . . . and delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement."

494 U.S. at 138. Conversely, the Defendants bore the nondiscretionary duty to care for Bogart’s animals pending the outcome of due process procedures — procedures that were to be provided not by the

Defendants themselves, but rather by the state courts. Cf. Zinermon,

494 U.S. at 138 (recognizing that state employees in Hudson and Parratt did not have authority to deprive prisoners of property or duty to

initiate predeprivation safeguards).13

12It is "the very nature" of Bogart’s deprivation, like those in Parratt

and Hudson, that "made predeprivation process ‘impossible.’" Zinermon,

494 U.S. at 137. That is, in Hudson, "the errant employee himself could

anticipate the deprivation since he intended to effect it, but the State still

was not in a position to provide predeprivation process, since it could not

anticipate or control such random and unauthorized intentional conduct."

Zinermon, 494 U.S. at 137 (citing Hudson, 468 U.S. at 533-34). Similarly, the State could not have been expected to prevent the deprivation

in Parratt by enacting a rule forbidding its employees from losing mail

by mistake, or by providing a hearing to determine whether its employee

should engage in negligent conduct. Zinermon, 494 U.S. at 137 (citation

omitted). 

13We part company with the assessment of our distinguished dissenting

colleague to the extent she concludes that South Carolina conferred on

the Defendants both the authority to euthanize Bogart’s animals and the

duty to initiate predeprivation procedural safeguards, such as would

bring this dispute under the ambit of Zinermon and Plumer. See post at

27 n.1. While the statutory scheme indeed would have authorized the

Defendants to make "humane disposition" of the animals following

Bogart’s conviction on an animal cruelty violation, see S.C. Code Ann.

§ 47-1-150(F), Bogart was not convicted of such a crime. The Defendants certainly did not possess "the power and authority to effect the very

deprivation complained of": the euthanization of Bogart’s animals imme20 BOGART v. CHAPELL
The teaching of Zinermon, it seems, is that where, as in this dispute, state employees do not have broad authority (or, indeed, any

authority) to deprive persons of their property or liberty, and do not

have a duty to provide the procedural safeguards required before a

deprivation occurs, the Parratt/Hudson doctrine still bars a § 1983

procedural due process claim based on the employees’ random and

unauthorized conduct. But where, as in Zinermon, state employees do

have broad authority to effect deprivations, as well as the duty to provide predeprivation procedural safeguards, the Parratt/Hudson doctrine is inapplicable.14 Therefore, we can only conclude that, under the

diately after her arrest. Zinermon, 494 U.S. at 138; see also Plumer, 915

F.2d at 931. Moreover, the Defendants may have been required upon

seizing the animals to petition a magistrate judge for a speedy hearing to

determine Bogart’s custody rights, but only, it seems, if the Defendants

had acted pursuant to the statutory provision allowing seizure by court

order preceding the owner’s arrest. See S.C. Code Ann. § 47-1-150(C).

It is not at all clear that the Defendants acted under that provision, rather

than the provisions permitting seizure in conjunction with the owner’s

arrest, S.C. Code Ann. §§ 47-1-120 and -140. See supra note 6. And,

even if the Defendants were mandated to notify the magistrate judge to

schedule a custody hearing, the imposition of such a miniscule obligation

did not rise to the level of the delegation in Zinermon of the State’s "duty

to see that no deprivation occur without adequate procedural protections." 494 U.S. at 135; see also Plumer, 915 F.2d at 931. In this dispute,

that duty fell to and rested upon the state courts. 

14In apparent recognition that this dispute cannot be analogized to

Zinermon unless the State vested some authority and discretion in the

Defendants to euthanize Bogart’s animals as they did, Bogart seeks to

rely on the York County Policy. However, for the reasons explained

above, we must consider the viability of Bogart’s procedural due process

claim without regard to the Policy, which, in any event, does not appear

on its face to have authorized the conduct at issue. 

Otherwise, Bogart contends that the euthanization of her dogs and cats

was predictable, because it was contemplated by Officer Terry and other

Defendants at least a week before the search and seizure at her property.

Bogart’s position rests on the erroneous notion that foreseeability is

judged from the perspective of the state actor, rather than, as she asserts

in her brief, that of the "disembodied State." The Supreme Court rejected

that very proposition in Hudson, observing that "[w]hether an individual

BOGART v. CHAPELL 21
Parratt/Hudson doctrine, the random and unauthorized euthanization

of Bogart’s animals by the Defendants — however atrocious — did

not constitute a violation of Bogart’s procedural due process rights

because a meaningful postdeprivation remedy for the loss is available.

VI.

Pursuant to the foregoing, the district court properly concluded that

Bogart does not possess a viable § 1983 procedural due process claim,

and we therefore affirm its judgment.

AFFIRMED

WILLIAMS, Circuit Judge, dissenting: 

Were we deciding this case on a clean slate, I would agree with

almost everything my colleagues in the majority have written. As it

stands, however, I believe that we are constrained by circuit precedents, namely Plumer v. State of Maryland, 915 F.2d 927 (4th Cir.

1990), and Fields v. Durham, 909 F.2d 94 (4th Cir. 1990), to interpret

Zinermon v. Burch, 494 U.S. 113 (1990), as having had a greater

impact on this area of law than that ascribed to it by the majority.

Accordingly, I respectfully dissent. 

I begin with the premise that Zinermon is in tension with Parratt

v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517

(1984). See Easter House v. Felder, 910 F.2d 1387, 1408-09 (7th Cir.

1990) (en banc) (Easterbrook, J., concurring). Indeed, as predicted by

Justice O’Connor in her dissent in Zinermon, the two lines of cases

have created confusion in the lower federal courts. Zinermon, 494

U.S. at 150 (O’Connor, J., dissenting); see Jose R. Juarez, Jr., The

Supreme Court as the Cheshire Cat: Escaping the Section 1983 Wonderland, 25 St. Mary’s L.J. 1, 30 tbl. 1 (1993) (describing both interemployee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position

to provide for predeprivation process." 468 U.S. at 534, cited in Zinermon, 494 U.S. at 130. As a result, we reject Bogart’s Zinermon contentions. 

22 BOGART v. CHAPELL
and intra-circuit splits in the application of Zinermon) [hereinafter

Juarez]. The inconsistency in these cases has its root in two competing views of the proper scope of § 1983 liability. 

Scholars have named these two competing visions of § 1983 liability the "legalist" model and the "governmental" model. Larry Alexander, Constitutional Torts, the Supreme Court, and the Law of

Noncontradiction: An Essay on Zinermon v. Burch, 87 Nw. U. L.

Rev. 576, 576-77 (1993) [hereinafter Alexander]; see also Juarez, 25

St. Mary’s L.J. at 7-12. The legalist model is typified by Hudson, and

under this view, § 1983 imposes liability only if state lawmakers

endorse a constitutional violation. See Hudson, 468 U.S. at 533; see

also Monroe v. Pape, 365 U.S. 167, 202, 237-47 (1961) (Frankfurter,

J., dissenting) (urging application of the legalist model to determine

whether a constitutional violation occurs "under color of" state law

for purposes of § 1983); cf. Barney v. City of New York, 193 U.S. 430,

438 (1904) (applying the legalist model in determining what constitutes "state action" under the Fourteenth Amendment). In other words,

under the legalist model, no § 1983 liability obtains if a governmental

actor violates state law when committing a constitutional violation,

unless the state fails to provide a post-violation remedy. In contrast,

under the governmental model, which is typified by Monroe v. Pape,

§ 1983 imposes liability for all constitutional violations committed by

governmental actors in the scope of their employment — even if the

actor violates state law when committing the violation. See Monroe,

365 U.S. at 183-87 (applying the governmental model to determine

whether a constitutional violation occurs "under color of" state law

for purposes of § 1983); cf. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913) (applying the governmental model in determining what constitutes "state action" under the Fourteenth

Amendment). The Court has vacillated between these two competing

viewpoints for almost one hundred years. 

The only obvious reason for the different approaches used in Monroe and Hudson is the location of the Constitutional right asserted by

the plaintiff. In Monroe, 365 U.S. at 171, the plaintiff asserted a violation of the Fourth Amendment, whereas in Hudson, 468 U.S. at 530,

the plaintiff alleged a violation of the Due Process Clause. Thus,

before Zinermon, the mission of lower courts was relatively clear —

apply the legalist model to procedural due process claims and apply

BOGART v. CHAPELL 23
the governmental model to other constitutional violations committed

by state actors. 

If the Court had followed Hudson and used the legalist model in

Zinermon, it would have been an easy case — according to the complaint, the state actors in that case committed the plaintiff to a mental

institution in willful violation of Florida’s procedural requirements.

Zinermon, 494 U.S. at 121 ("Defendants . . . knew or should have

known that Plaintiff was incapable of voluntary, knowing, understanding and informed consent to admission and treatment . . . . Nonetheless, Defendants . . . seized Plaintiff and against Plaintiff’s will

confined and imprisoned him and subjected him to involuntary commitment and treatment . . . . Plaintiff was without the benefit of counsel and no hearing of any sort was held at which he could have

challenged his involuntary admission and treatment."); id. at 122-23

(describing the extensive procedures mandated by Florida law prior

to involuntary commitment). Under the reasoning of Hudson, the

actions taken by the Zinermon defendants were "random and unauthorized," and the state could not have foreseen its employees’ failure to

comply with the established state procedures. Hudson, 468 U.S. at

533. Thus "the state’s action" would not have been "complete until

and unless it provide[d] or refuse[d] to provide a suitable postdeprivation remedy." Id.

Similarly, if the Court had overruled Hudson and adopted the governmental model for procedural due process claims, Zinermon would,

again, have been an easy case — a state employee acting within the

scope of his employment deprived the plaintiff of his liberty, without

the predeprivation hearing to which the Constitution entitled him.

Under the reasoning of Monroe, the state officials acted under color

of state law when they deprived the plaintiff of his liberty without a

hearing, and the plaintiff thus would have been entitled to bring a

§ 1983 claim in federal court. 

Rather than choosing between the two competing models, however,

the Supreme Court, in a rather vague opinion, used language indicating its adherence to both models. Zinermon, 494 U.S. at 136-38.

Although Zinermon relied on Monroe, the paradigmatic example of

the governmental model of § 1983 liability, and clearly retreated from

the legalist model, for whatever reason, the Court did not overrule

24 BOGART v. CHAPELL
Hudson. Zinermon, 494 U.S. at 135 ("It is immaterial whether the due

process violation Burch alleges . . . aris[es] from petitioners’ failure

to comply with state procedures for admitting involuntary patients.");

Alexander, 87 Nw. U. L.R. at 587. 

Thus, when we decided Fields and Plumer, we were faced with a

line of Supreme Court precedents that resembles, as Judge Easterbrook has colorfully described, "the path of a drunken sailor." Easter

House, 910 F.2d at 1409 (Easterbrook, J., concurring); see also Alexander, 87 Nw. U. L.R. at 596 ("It is not an overstatement to describe

the Supreme Court’s constitutional torts jurisprudence as a welter of

confusion, leaving litigants and lower courts completely at sea.").

Lower courts were, it seemed, free to chose whichever model they

preferred by reading Zinermon narrowly or broadly. In Plumer and

Fields, we interpreted Zinermon broadly, concluding that the Court

had adopted the governmental model of determining liability for procedural due process claims under § 1983. Plumer, 915 F.2d at 930-31;

see also Juarez, 25 St. Mary’s L.J. at 36 & app. 1 ("The United States

Court of Appeals for the Fourth Circuit has consistently followed the

[g]overnmental [m]odel."). Although other circuits narrowly read

Zinermon in order to retain the legalist model typified by Hudson, see

Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc) [Caine

II]; Easter House, 910 F.2d at 1400-02, we rejected that approach.

Plumer, 915 F.2d at 930-31(citing Caine v. Hardy, 905 F.2d 858, 862

(5th Cir.1990) overruled en banc by Caine II, 943 F.2d 1406); cf.

Easter House, 910 F.2d at 1400 ("[W]e note that the phrase ‘random

and unauthorized’, as it has been employed since the decision in Parratt, can be interpreted both narrowly and broadly."). The courts that

narrowly read Zinermon focus on whether the state has granted broad

discretion to its employees in carrying out their duties to determine

whether a case is covered by Zinermon. See, e.g., Easter House, 910

F.2d at 1401 ("Although the appellants did exercise a certain amount

of discretion and authority over the failure or success of renewal

applications, that discretion was not ‘uncircumscribed’ or otherwise

unregulated."). As no state gives its employees discretion to violate

state law, however, the violation of state procedural rules means that

Parratt/Hudson applies and no § 1983 liability exists for the failure

to comply with the existing state procedures. The majority essentially

follows this approach today. See ante at 20. 

BOGART v. CHAPELL 25
Under Plumer, however, the Parratt/Hudson doctrine does not

apply when "erroneous . . . deprivation[s are] foreseeable" and "predeprivation procedures are practicable." Plumer, 915 F.2d at 931.

Moreover, when a state implements predeprivation procedural safeguards, it demonstrates both that predeprivation procedures are practicable and that erroneous deprivations are foreseeable. Id.; Fields, 909

F.2d at 97 ("We believe that th[e] risk was foreseeable, and that [the

state] acted to address it by prescribing predeprivation procedures to

ensure that [erroneous deprivations did not occur]."). We only look to

the adequacy of postdeprivation process when it "truly is impossible"

for the state to provide predeprivation procedures "before a person

unpredictably is deprived of his liberty or property through the unauthorized conduct of a state actor." Plumer, 915 F.2d at 930. Under

Plumer, the very fact that governmental actors failed to comply with

an established state procedural scheme before depriving someone of

her property "indicate[s] . . . the inapplicability of Parratt" — regardless of whether the actor is vested with broad discretion by the procedural scheme. Plumer, 915 F.2d at 931; Fields, 909 F.2d at 97. "In

short, when a state government can and does provide a predeprivation

hearing and charges its employees with effecting the deprivation complained of, the availability of an adequate state postdeprivation remedy does not, standing alone, satisfy the Due Process Clause."

Plumer, 915 F.2d at 931. Thus, if the Constitution requires predeprivation procedures, it is no defense to § 1983 liability that state law

establishes the requisite predeprivation procedures, if those procedures were not used in a given case. 

For example, in Fields, school officials were accused of firing a

tenured professor without following the pretermination procedures

required by state law. Fields, 909 F.2d at 96-97. Even though the officials had not followed the letter of state law, they had provided the

professor with some pretermination process. The officials had no discretionary authority not to follow the constitutionally adequate procedures established by state law, but we nonetheless held that Parratt

was inapplicable. Id. Although we concluded that the pretermination

procedures actually afforded the professor sufficed to satisfy due process under Mathews v. Eldridge, 424 U.S. 318, 333 (1976), had they

been inadequate, liability would have attached. Fields, 909 F.2d at 96-

97. 

26 BOGART v. CHAPELL
We also applied the governmental model of liability in Plumer. To

paraphrase Plumer in the factual context of this case: 

[T]he risk of an erroneous [animal forfeiture] clearly was

foreseeable. Indeed, [South Carolina] surely realizes that for

it has developed procedural safeguards to protect against

erroneous deprivations. When utilized, the procedures established by [South Carolina] to ensure correct [animal forfeitures] have significant value in guarding against any

erroneous deprivations. But the fact that the predeprivation

procedures are practicable indicates, as in Zinermon, the

inapplicability of Parratt.

Plumer, 915 F.2d at 931; see also Fields, 909 F.2d at 97 ("[W]e first

ask whether the risk of an erroneous deprivation was foreseeable.").1

1The majority holds that "the Defendants’ euthanization of Bogart’s

animals is properly characterized as unauthorized . . . ." Ante at 20.

Because the Defendants’ actions were "foreseeable" as that term is used

in our precedents, and predeprivation procedures were practicable, I need

not decide whether the Defendants’ actions were also "unauthorized."

See Plumer v. State of Maryland, 915 F.2d 927, 931 (4th Cir. 1990)

("[T]he fact that the predeprivation procedures are practicable indicate

. . . the inapplicability of Parratt."); Fields v. Durham, 909 F.2d 94, 97

(4th Cir. 1990) ("[W]e first ask whether the risk of an erroneous deprivation was foreseeable."). I note, however, that under Plumer, "the conduct

of . . . state employees . . . [i]s not ‘unauthorized’ [if] the state has delegated to its employees ‘the power and authority to effect the very deprivation complained of . . . and also delegated to them the concomitant

duty to initiate the procedural safeguards set up by state law . . . ."

Plumer v. State of Maryland, 915 F.2d 927, 931 (4th Cir. 1990). In this

case, the animal control officers who seized Bogart’s animals are the

ones who ultimately would be charged with making a "humane disposition" of the animals if Bogart was adjudicated unable to care for them.

S.C. Code Ann. § 47-1-150(F)(2). They were also charged with "petition[ing] the magistrate or municipal judge of the county or municipality

wherein the animal [wa]s found for a hearing" immediately after the seizure. S.C. Code Ann. § 47-1-150(H). Given these requirements, it seems

clear that South Carolina "has delegated to [the Defendants] the power

and authority to effect" euthanizations and also the "concomitant duty to

initiate the procedural requirements set up by" South Carolina law.

Plumer, 915 F.2d at 931. 

BOGART v. CHAPELL 27
South Carolina has established a detailed procedural scheme governing the seizure and care of cruelly-treated and neglected animals.

See S.C. Code Ann. §§ 47-1-120, -140, -150, -170 (Law. Co-op. 1987

& Supp. 2003). That scheme provides two different methods for the

seizure of animals. Animals may be seized during the course of an

arrest for animal cruelty or pursuant to a warrant issued by a magistrate.2

See id. §§ 47-1-120, -150(C). Regardless of the method employed to

seize an animal, the owner is entitled to either criminal or civil process before forfeiting the animal. Id. §§ 47-1-150(F), -170. Clearly,

South Carolina’s procedural scheme is constitutionally sufficient —

it provides for predeprivation notice and hearing, and Bogart has not

argued that the Constitution requires more. See Mathews, 424 at 333.

But that simply is not the end of our inquiry under the governmental

model of liability that we have adopted. We must also examine, as we

did in Fields and Plumer, the predeprivation process actually afforded

Bogart in this case. If that process was inadequate, the state officials

who deprived her of her property are liable under § 1983 — just as

they would be for executing a search or an arrest without a warrant.

The procedures actually afforded Bogart in this case were not constitutionally sufficient. As the majority notes, the Constitution generally requires a pre-deprivation hearing before the destruction of one’s

animals. Mathews, 424 U.S. at 333; see Nicchia v. New York, 254

2

I note that in the district court, and in its initial brief on appeal, the

County argued that it seized Bogart’s animals pursuant to the civil warrant provisions of S.C. Code Ann. § 47-1-150 (Law. Co-op. Supp. 2004).

(J.A. at 304 ("South Carolina . . . passed . . . 47-1-150 . . . . And they

set out . . . specific state law procedures to govern in cases such as this.

. . . [S]ubsection B [of 47-1-150] provides for certain due process rights,

provides for a hearing before a magistrate, [and] it provides for notice to

be given."); J.A. at 309 ("[W]hat [Bogart is] talking about obviously is

47-1-150."); Appellee’s Br. at 17 (citing § 47-1-150).) This position corresponds with the facts of the case, given that Officer Mabry obtained a

warrant as required by section 47-1-150 and that the defendants began

seizing animals well before Bogart was arrested for animal cruelty. (J.A.

at 157.) The County, however, switched course in its supplemental brief

and argued that the animals were seized pursuant to section 47-1-120

incident to Bogart’s arrest for animal cruelty. As discussed, infra, under

either statutory provision, Bogart was entitled to a hearing before forfeiting her animals. §§ 47-1-150(F), -170. 

28 BOGART v. CHAPELL
U.S. 228, 230 (1920). Thus, if a state procedural scheme provided for

the summary killing of all seized animals, the scheme would be

patently unconstitutional. Here, unlike the professor in Fields, Bogart

undisputedly received no predeprivation process at all. Her animals

were summarily killed after being seized by the very officials responsible for initiating the statutory hearing under South Carolina law.

S.C. Code Ann. §§ 47-1-150(C), (D) (Law. Co-op. Supp. 2004). It

follows that because Bogart did not receive the process she was constitutionally due before the destruction of her animals, she is entitled

to maintain a § 1983 claim notwithstanding the availability of adequate postdeprivation state tort remedies. 

If this were a case of first impression, I would follow the legalist

model typified by Hudson and read Zinermon narrowly, as do several

of our sister circuits. Justice Holmes strongly defended the legalist

model in his dissent from Raymond v. Chicago Union Traction Co.,

207 U.S. 20, 41 (1907) ("I am unable to grasp the principle on which

the state is said to deprive the appellee of its property without due

process of law because a subordinate . . . , subject to the control of

the supreme court of the state, is said to have violated the express

requirement of the state in its Constitution."), as did Justice Frankfurter in his dissent from Monroe, 365 U.S. at 237 ("The jurisdiction

which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal

courts, would remain the primary guardians of that fundamental

security of person and property which the long evolution of the common law had secured to one individual as against other individuals.

The Fourteenth Amendment did not alter this basic aspect of our federalism."). I find the arguments of these notable jurists persuasive. 

Unfortunately, we are bound by the broad interpretation of Zinermon contained in Plumer and Fields. Thus, although I agree that the

majority’s interpretation of Zinermon is the preferable one, and perhaps even "the best estimate of the course a majority of the [Supreme]

Court will take" to resolve the "[i]nconsistent lines of precedent,"

Easter House, 910 F.2d at 1409 (Easterbrook, J., concurring), I

believe that we, as a panel, should refrain from muddying the clear

law of this circuit by adding to our body of precedents an opinion that

relies upon the legalist model. By doing so today, the majority creates

an inconsistent line of precedents in our circuit. If we wish to follow

BOGART v. CHAPELL 29
the narrow interpretation of Zinermon used in the Fifth and Seventh

Circuits, we must first overrule Plumer and Fields in an en banc session. Because we have not done so, I would reverse the district court

and allow Bogart to proceed with her procedural due process claim.

Accordingly, I respectfully dissent.

30 BOGART v. CHAPELL