## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 16 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAROLYN CLARK and KAROLYN’S PET RESORT, Plaintiffs - Appellants, v. CITY OF DRAPER; DANIEL F. BERTCH; LESLIE CUTLER; JAN MCNAIR; BOYD JOHNSON and CITY OF SANDY, Defendants - Appellees. No. 97-4134

Appeal from the United States District Court

for the District of Utah (D.C. No. 95-CV-458)
Franklin R. Brussow, Salt Lake City, Utah, for Plai ntiff - Appellant. Andrew M. Morse, Salt Lake City, Utah, for Defendan ts - Appellees.

Before BRISCOE , McKAY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Appellant Carolyn Clark, owner of a private zoo in Draper City, Utah, brings this § 1983 action against the cities and va rious officials of Draper City1 Appellant also appears to imply a claim of malicious prosecution against Draper

City officials relating to her criminal prosecution, but fails to address the issue in her brief. Accordingly, we consider the issue to be waived on appeal. SeeMurrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (dismissing perfunctory complaints that fail to frame and develop an issue as insufficient to invoke appellate review).

2 In a prior appeal in this case, we vacated an earlier grant of summary judgment and remanded the case for reconsideration by a newly assigned judge because the original district judge should have recused himself. SeeClark v. City of Draper , No. 96-4006, 1997 WL 157382 (10th Cir. Apr. 4, 1997). - 2 - and Sandy City, Utah, for violating her constitutio nally protected property interests in two miniature blue foxes when the offi cials impounded and subsequently destroyed the animals. 1 The district court granted appellees’ summary judgment motion as to all claims. 2 We affirm the district court and hold that the cities and their officials were acting wit hin their police power under state and municipal law in seizing the foxes and testing them for rabies. I On May 18, 1994, four-year-old McKinley Eastmond su ffered a skin abrasion while viewing two miniature blue foxes at appellant’s petting zoo as part of a school field trip. There were no witnesses to the incident. The boy’s mother, Mrs. Eastmond, took him to a loca l pediatric emergency room. After her examination of the wound, the trea ting physician informed the Utah Department of Health that the boy may have bee n exposed to rabies. Mrs. Eastmond subsequently contacted Janet McNair, a Draper City Animal Control Officer and a defendant-appellee in this case. Upon contacting state officials on3 Because neither the boy nor any witnesses could identify the fox that had

allegedly caused the injury, and because the foxes were housed together, both animals were under suspicion. - 3 - the morning of May 19, McNair learned that under st ate law, foxes are considered “wild” for purposes of rabies control because there is no licensed vaccine for foxes. Under Utah law and administrative regulatio ns, the State Health Department has authority to control and prevent the spread of rabies. See Utah Code Ann. § 26-6-3 (1998) (granting State Health De partment the authority to investigate and control communicable diseases); Uta h Code Ann. § 26-6-11 (1998) (directing State Health Department to invest igate reports of rabies). State regulations demand that any wild animal that bites or scratches a person be tested for rabies at once. The test requires that the ani mal be killed and its brain examined for evidence of rabies. See Utah Admin. Code 386-702-5(2.4) (1998). A state official advised McNair to test both animal s 3 for rabies within 48- 72 hours. If tests were not conducted within that time, the boy would have to begin taking a series of rabies shots. Meanwhile, according to McNair, Ms. Clark resisted the officer’s initial efforts to move the foxes to a secure enclosure while McNair conferred with state officials about the pro per measures to take under the circumstances. On the evening of May 19, upon a motion of defendan t-appellee Draper City Prosecutor Leslie Cutler, Judge Daniel Bertsch of the Draper City Justice4 Sandy City officials were asked to help impound and quarantine the foxes because

Draper City has inadequate personnel and facilities to house animals suspected of carrying the rabies virus.

5Although§ 1983 refers only to “persons,” in Monell v. Department of Social Services , 436 U.S. 658, 690 & n. 54 (1978), the Supreme Court held that § 1983 applies to “local government units which are not considered part of the State for Eleventh Amendment purposes.” (continued...) - 4 - Court, also a defendant-appellee in this case, issu ed an Order of Impoundment. At 11:30 P.M. that night, the foxes were impounded and isolated. 4 Early the next morning, the Draper City Justice Court held a heari ng concerning the disposition of the foxes in which Ms. Clark, Draper City offici als, and state health officials were given the opportunity to present evidence. Th e city and state presented witnesses and evidence; the plaintiff offered only her own testimony that the foxes had never before bitten a person. The Court ordered that the foxes be turned over immediately to state health officials, and the animals were killed. The animals’ brains tested negative for rabies.
II We have jurisdiction over the district court’s fina l judgment under 28 U.S.C. § 1291, and we review a grant of summary jud gment de novo, applying the same legal standard used by the district court purs uant to Fed. R. Civ. P. 56(c).
See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). To prove her claims, appellant must show that the m unicipal officials and municipalities 5 named in her suit acting “under color of any statu te, ordinance,(...continued)

Monellrequires that for the municipality to be liable, its allegedly unconstitutional act must execute “a government’s policy or custom.” Id. at 694. - 5 - regulation, custom, or usage, of any State” subject ed her “to the deprivation of any rights, privileges, or immunities secured by th e Constitution and laws.” 42 U.S.C. § 1983. Her argument implicates her substan tive and procedural due process rights stemming from her property in the fo xes. The initial issue we must address in considering wh ether appellant suffered a violation of her due process rights, therefore, i s the precise nature of her property in the foxes. At the turn of the twentiet h century, both the United States Supreme Court and the Supreme Court of the Territory of Utah held that property in domesticated canines is subject to the state’s p olice power for the protection of its citizens. See Sentell v. New Orleans & C.R. Co. , 166 U.S. 698, 700-04 (1897) (noting that “property in dogs is of an imperfect o r qualified nature,” and that even if perfect, it would be “subject to the police power of the state”); Jenkins v. Ballantyne , 30 P. 760, 760 (Utah 1892). In this century, num erous states have upheld this description of property in domesticated canines. See, e.g. , Thiele v. City and County of Denver , 312 P.2d 786, 789 (Colo. 1957); City of Water Val ley v. Trusty , 343 So.2d 471, 472 (Miss. 1977); but see 3A C.J.S. Animals § 5 (discussing “modern trend” of granting “full and un qualified status as property” to dogs). As the Supreme Court of Michigan has not ed, however, “[w]hether the- 6 -

property in dogs is regarded as qualified or absolu te, they are subject to the police power of the state, and may be destroyed or otherwi se dealt with, as in the judgment of the legislature is necessary for the pr otection of its citizens.” People
v. Yeo , 302 N.W.2d 883 (Mich.App. 1981) (quoting Bugai v. Richet , 242 N.W. 774, 774 (Mich. 1932)). Even assuming appellant’s property right is unqualified, when foxes are suspected of infecting a human with rabies, under Utah law they can legitimately be subjected to drastic regulation for purposes of rabies prevention. Appellant’s argument that because the foxes are “do mestic” for purposes of Utah Admin. Code 657-3-1, her property interest enj oys greater protection is irrelevant. Utah has adopted the Compendium of Ani mal Rabies Control as its reference document for animal vaccine use. See Utah Admin. Code 386-702- 5(3.2) (1998). The Compendium explicitly includes all foxes in its list of “wild” animals, and states that no rabies vaccine is licen sed for use on wild animals. See National Ass’n of State Pub. Health Veterinarians, Compendium of Animal Rabies Control, § III(B)(1)(d)(1) (1991). See also Centers for Disease Control, Rabies Prevention–United States (1991) (characteriz ing foxes as “wild animals” and stating that they are among those animals “most often affected with rabies and the cause of most indigenous cases of human rab ies in the United States since- 7 -

1960”). The foxes were therefore properly treated as “wild” for rabies control
purposes. Appellant further argues, however, that because the city has established a set of local animal control ordinances that cover r abies vaccinations and the handling of rabid animals, see Draper City, Utah, Code §§ 7-5-7 & 7-5-8, local officials could only follow the dictates of city la w rather than those of applicable state regulations in their response to the threat o f rabies. Under the city ordinance, appellant argues, her foxes were subjectto quarantine rather than to the immediate and fatal testing for rabies that the state requires for “wild” animals. This argument is incorrect. State law remains binding even in areas covered by municipal ordinances.
See Utah Const. art. XI, § 5 (the state’s grant of aut hority to municipal corporations cannot limit or restrict the power of the state legislature in state affairs and laws of general applicability); Utah Co de Ann. § 10-1-108 (1996) (the provisions of the Utah Municipal Code “shall not be considered as impairing, altering, modifying or repealing any of the jurisdi ction or powers . . . of state government”). In matters where “uniform state acti on” is often required, such as in the protection of the health of the state’s citi zens, “[t]he duty of the state cannot be circumscribed by city limits.” Salt Lake City v. International Ass’n of Firefighters , 563 P.2d 786, 789 (Utah 1977). Furthermore, the exercise of police- 8 -

power is an attribute of state sovereignty that the state may delegate without relinquishing to municipalities; when the state cho oses to regulate and act under its police power, then, its laws and operations mus t predominate. See id. ; Allgood v. Larson , 545 P.2d 530, 532 (Utah 1976) (“the state may alw ays invade the field or regulation delegated to the cities and supercede, annul, or enlarge the regulation which the municipality attempted”) (quot ing Salt Lake City v. Kusse , 85 P.2d 802 (Utah 1939) (Larson, J., dissenting)). And as numerous state supreme courts have concluded, the power to protectthe public health and welfare from contagious diseases by destroying infected ani mals arises from the police power of both the state and its municipalities. Se e, e.g. , Ruona v. City of Billings , 323 P.2d 29, 30 (Mont. 1958); City of Dickinson v . Thress , 290 N.W. 653, 655 (N.D. 1940); Rapid City v. Tuning , 147 N.W.2d 604, 605 (S.D. 1967); King v. County of Arlington , 81 S.E.2d 587, 589-90 (Va. 1954). Having held that appellant’s property right in her foxes is entirely subject to applicable state laws and regulations protecting the public from the threat of rabies, we turn to the specific Utah regulation pre scribing the disposition of a fox under suspicion of infecting a human with rabies. Utah regulations require that any wild animal that bites or scratches a person “s hall be killed at once . . . and the brain submitted . . . for examination for evide nce of rabies.” Utah Admin. Code 386-702-6(2.4) (1998). The state clearly plac es the interests of humans who6Although appellant argues that testimony from her criminal trial indicates that the

child’s injury may not have been from a bite, under the circumstances appellees reasonably dealt with the foxes under Utah Admin. Code 386-702-6(2.4).

7We need not address the issue of whether appellant has a viable takings claim under the Fifth and Fourteenth Amendments of the federal constitution, because she has failed to raise such a claim in her appeal. - 9 - may have contracted rabies from a wild animal over the life of the animal; in an emergency situation, the property rights of the ani mal’s owner are entirely subject to the state’s police powers. 6
III Given appellant’s limited property right as againstthe state’s police power, her due process claims must fail. 7
A Appellant claims that the procedures local official s employed in seizing and destroying the animals violated her procedural due process rights. “We engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?” Hennigh v. City of Shawnee , 155 F.3d 1249, 1253 (10th Cir. 1998) (citation omitted). “The existenc e of a property interest is defined by existing rules or understandings that st em from an independent source such as state law.” Driggins v. City of Oklahoma C ity , 954 F.2d 1511, 1513 (10th Cir. 1992) (citation and internal quotations omitte d).8 Insofar as appellant’s brief may be read to argue that the impoundment was a

seizure in violation of the Fourth Amendment, her argument is clearly foreclosed by the valid impoundment order. Nor do her allegations of impropriety in the issuance of that order rise to the level of a due process violation. - 10 - As discussed supra , the entirety of appellant’s property right in fox es suspected of infecting a young boy with rabies was subject to the city’s police power, as delegated by the state and as defined und er state law. The postdeprivation (but pre-destruction) hearing that the city provided in this case was adequate. Although normally a property owner i s entitled to a predeprivation hearing, where, as in this case, the state must act quickly, a meaningful postdeprivation hearing is adequate. See Hudson v. Palmer , 468 U.S. 517, 531-33 (1984). Appellant’s postdeprivation hearing before a local magistrate (with the opportunity to be heard, to present witnesses, and to be represented) was hastily convened on the morning after the city’s late-night impoundment of the foxes, and undoubtedly caused appellant some hardship. 8 Under the balancing test articulated in Mathews v. Eldridge , 424 U.S. 319 (1976), we consider the private interest involved, the risk of erroneous deprivatio n resulting from the procedures used, the probable value of additional procedural s afeguards, and the government’s interest in efficient procedures, see id. at 335, and hold that Draper9Numerous courts have held that government officials, acting under their general

police powers and statutory authority, may act in advance of full judicial adjudication in destroying an animal suspected of being infected with contagious disease. “The emergency may be such as not to admit of the delay essential to judicial inquiry and consideration, or the subject of such action and process may be of such a nature, or the conditions and circumstances in which the act must be performed to effect the protection and given effect to the law may be such, as to render judicial inquiry and consideration impracticable.” SeeSentell , 166 U.S. at 705 (quoting Jenkins , 30 P. at 760). See also Engsberg v. Town of Milford , 601 F. Supp. 1438, 1445 (W.D. Wis. 1985) (finding that a government official’s negligent killing of plaintiff’s healthy dogs constituted neither a substantive nor a procedural due process violation), aff’d , 785 F.2d 312 (7th Cir. 1986); Newark & S.O.H.R. Co. v. Hunt , 12 A. 697, 701 (N.J. 1888) (upholding the constitutionality of legislation that authorizes the summary destruction of diseased horses, because the legislation allowed for postdeprivation adjudication). As we have previously noted, seesupra

n.7, we need not address whether such government actions constitute takings for which animal owners should be compensated. - 11 - City’s process was sufficient, particularly in ligh t of the government’s strong interest in public health and in the speedy resolut ion of rabies tests on the foxes. 9
B An arbitrary deprivation of an individual’s property right can violate the substantive component of the Due Process clause of the Fourteenth Amendment.
See Archuleta v. Colorado Dep’t of Institutions , 936 F.2d 483, 489 (10th Cir. 1991). Any substantive due process claim must repr esent “more than an ordinary tort to be actionable under § 1983,” Uhlrig v. Hard er , 64 F.3d 567, 573 (10th Cir. 1995), and must “shock the conscience.” Collins v. City of Harker Heights , 503 U.S. 115, 126 (1992). To reach that level, the gov ernment action must be deliberate, rather than merely negligent. See id. at 127 n.10.- 12 -

On the factual record before us, appellant cannot d emonstrate that the city’s necessarily hasty actions in the abatement of a pot entially dangerous nuisance were intentionally egregious. Nor, given appellees ’ actions under valid state public health legislation, can their taking of appe llant’s property be considered arbitrary. Therefore, neither due process claim ha s merit.
IV The district court’s grant of summary judgment to d efendants is
AFFIRMED.