Opinion
Case No. 4:18-cv-00199-SMR-CFB
2020-02-14
Cynthia PESCE and Bela Animal Legal Defense and Rescue, Plaintiffs, v. CITY OF DES MOINES, IOWA, and James Butler, Defendants.
Jaysen Christopher McCleary, Attorney at Law, Jaysen McCleary, Des Moines, IA, for Plaintiffs. Michelle Mackel-Wiederanders, Des Moines City Attorney, Des Moines, IA, for Defendants.
Jaysen Christopher McCleary, Attorney at Law, Jaysen McCleary, Des Moines, IA, for Plaintiffs.
Michelle Mackel-Wiederanders, Des Moines City Attorney, Des Moines, IA, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
STEPHANIE M. ROSE, JUDGE
Before the Court is a Motion for Summary Judgment filed by Defendants City of Des Moines, Iowa (the "City"), and James Butler. [ECF No. 34]. Plaintiffs Bela Animal Legal Defense and Rescue ("Bela") and Cynthia Pesce failed to timely resist the motion. See [ECF No. 43]. The Court thus considers the motion to be unresisted. No party requested oral argument on the motion, and the Court finds the issues can be resolved without it. See LR 7(c). For the reasons stated herein, Defendants' motion is GRANTED.
I. PRELIMINARY MATTERS
Before the Court discusses Defendants' motion, it must first address a procedural abnormality in this case, along with its possible ramifications. Under Rule 12 of the Federal Rules of Civil Procedure, a defendant must typically serve an answer within twenty-one days after being served with a summons and complaint. Fed. R. Civ. P. 12(a). When a party files a pre-answer motion to dismiss under Rule 12, the time to serve an answer is extended until fourteen days after the court denies the motion. Fed. R. Civ. P. 12(a)(4)(A). Here, Defendants filed pre-answer motions to dismiss, which the Court granted in part and denied in part on December 10, 2018. [ECF No. 16]. At that point, Defendants were required to file an answer responding to the remaining claims in the case by no later than December 26, 2018. But Defendants never did so, Plaintiffs never sought an entry of default or a default judgment, and the parties proceeded with discovery, seemingly having overlooked Defendants' omission.
The fourteenth day after the Court's December 10, 2018 Order was December 25, 2018, a federal holiday. The deadline was therefore extended to December 26, 2018, the next business day. See Fed. R. Civ. P. 6(a)(1).
Which brings the Court to Defendants' Motion for Summary Judgment, where—on a strict reading of the Federal Rules—Defendants' failure to file an answer has potentially significant consequences. First, they are deemed to have admitted all the facts in the complaint (in this case, Plaintiffs' Amended Petition). See Fed. R. Civ. P. 8(b)(6) ("An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied."). Second, parties are required to raise affirmative defenses in their answer. Fed. R. Civ. P. 8(c)(1). In support of summary judgment, Defendants rely on two affirmative defenses—qualified immunity and res judicata. "Generally, failure to plead an affirmative defense results in a waiver of the defense." First Union Nat'l Bank v. Pictet Overseas Tr. Corp., Ltd. , 477 F.3d 616, 622 (8th Cir. 2007).
But courts do not strictly adhere to these rules when no party has been prejudiced and the purposes of the Federal Rules' pleading requirements are otherwise satisfied. "[T]he primary role of pleadings in the federal system ... is to provide notice ...." Pepper v. Village of Oak Park , 430 F.3d 805, 812 (7th Cir. 2005) ; see also id. ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." (quoting parenthetically Conley v. Gibson , 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). Thus, federal courts have applied Rule 8 in a way to "avoid unfair surprise by the party who failed to file a responsive pleading." Trotter v. Jack Anderson Enters., Inc. , 818 F.2d 431, 436 (5th Cir. 1987). Consistent with this, courts have declined to apply Rule 8(b)(6) when a non-pleading defendant files a motion for summary judgment, reasoning that the motion provides "plain notice" to the plaintiff of the matters that are to be litigated. Id. (declining to reverse a grant of summary judgment where the district court did not apply Rule 8(b)(6), finding that the defendant's motion for summary judgment gave the plaintiff notice of the issues to be litigated and thus "had no effect on the rights of" the plaintiff); see also Sanchez v. BNSF Ry. Co. , 976 F. Supp. 2d 1265, 1267–68 (D.N.M. 2013) (declining to apply Rule 8(b)(6) where the defendant filed a motion for summary judgment without first answering the complaint, reasoning that the defendant's omissions did not prejudice the plaintiff and the motion for summary judgment provided notice to the plaintiff of the issues to be litigated); cf. Pepper , 430 F.3d at 812 (declining to apply Rule 8(b)(6) to a defendant who filed a motion for summary judgment (rather than an answer) to the plaintiff's amended complaint, reasoning that the plaintiff's claims were without merit and that remanding to require the defendant to file an answer would have been "a waste of time").
Here, Defendants did not file an answer. They did, however, file the instant Motion for Summary Judgment in which they argue they are entitled to judgment as a matter of law. Further, in support of their motion, Defendants filed a Statement of Undisputed Material Facts ("Statement of Facts"). [ECF No. 34-1]. Although the Statement of Facts may not address every factual allegation in the Amended Petition, it signals the factual basis on which Defendants claim they are entitled to a favorable judgment. Thus, Defendants have given Plaintiffs notice of the issues to be litigated and facts relevant to their case, and an answer was not necessary to effectuate the goals of the Federal Rules' pleading requirements.
Nor has Defendants' failure to file an answer prejudiced Plaintiffs. Not only have Plaintiffs received adequate notice of the issues and facts that stand to be litigated, but Plaintiffs had ample opportunity to contest those facts. Rule 56 allows a party resisting summary judgment to show a fact is genuinely disputed by citing materials in the record, including "admissions." Fed. R. Civ. P. 56(c)(1)(A). But despite two extensions of time to respond to Defendants' Motion for Summary Judgment and Statement of Facts, Plaintiffs failed to file a timely response. Accordingly, the motion is unresisted and Plaintiffs cannot argue they would be prejudiced by the Court deciding the motion on the merits.
Plaintiffs filed a third motion for an extension of time to respond to Defendants' Motion for Summary Judgment. While that motion was pending, Plaintiffs filed a response. The Court found Plaintiffs were not entitled to a third extension of time and consequently struck the response from the record. See [ECF No. 43].
Also, because Plaintiffs did not respond to Defendants' Statement of Facts, the Court may consider those facts undisputed for the purposes of Defendants' Motion for Summary Judgment, and it may grant summary judgment if Defendants' "motion and supporting materials—including the facts considered undisputed—show the movant is entitled to it." Fed. R. Civ. P. 56(e)(2), (e)(3). Plaintiffs effectively waived any objection to Defendants' Statement of Facts by not responding to it. Consequently, the Court can and will consider those facts undisputed for the purposes of Defendants' Motion for Summary Judgment.
Nevertheless, Defendants' Statement of Facts only provides Plaintiffs with notice as to the facts set out therein. Although Defendants have thereby signaled some facts they deem important to the case, it does not follow that Defendants have given notice that they deny all other facts in the Amended Petition. Accordingly, although the Court deems undisputed the assertions in Defendants' Statement of Facts, it also deems admitted under Rule 8(b)(6) any facts asserted in the Amended Petition. Where, if at all, these admitted and undisputed facts conflict, the Court finds the Statement of Facts controls for the purposes of this motion only. See Fed. R. Civ. P. 56(e)(2).
As for Defendants' affirmative defenses, the United States Court of Appeals for the Eighth Circuit has "eschewed a literal interpretation of [ Rule 8(c) ] that places form over substance, and instead [has] held that ‘[w]hen an affirmative defense "is raised in the trial court in a manner that does not result in unfair surprise, ... technical failure to comply with Rule 8(c) is not fatal." ’ " First Union Nat'l Bank , 477 F.3d at 622 (third alteration in original) (citations omitted). The Eighth Circuit has approved the allowance of affirmative defenses first raised at various stages of litigation. See, e.g. , Sanders v. Dep't of the Army , 981 F.2d 990, 991 (8th Cir. 1992) (per curiam) (finding no abuse of discretion when the district court allowed an affirmative defense to be raised for the first time in a motion to dismiss); Stoebner v. Parry, Murray, Ward & Moxley , 91 F.3d 1091, 1093–94 (8th Cir. 1996) (per curiam) (favorably citing a decision of the United States Court of Appeals for the Ninth Circuit that allowed an affirmative defense to be raised for the first time in a summary judgment motion where there was no prejudice).
Here, Defendants have not prejudiced Plaintiffs by asserting their affirmative defenses for the first time in the instant motion, nor have Plaintiffs been unfairly surprised. As a threshold matter, the City joined in a motion to dismiss that asserted a res judicata defense as to Counts II and III of the Amended Petition. See [ECF Nos. 4; 5]. This should have at least signaled to Plaintiffs that their previous litigation with the City over the subject matter of this case might preclude other claims in this action. More importantly, however, Defendants filed their Motion for Summary Judgment on September 30, 2019, nearly six months before trial. See Grant v. Preferred Research, Inc. , 885 F.2d 795, 797–98 (11th Cir. 1989) (finding the trial court did not err by allowing the defendant to raise an affirmative defense for the first time in a motion for summary judgment, where the motion was filed one month before trial and the plaintiff failed to assert prejudice from the lateness of the filing). Plaintiffs were also given two extensions of time—and nearly two months in total—to respond to Defendants' motion. Yet, they failed to file a timely response. Thus, despite having considerable opportunity to do so, Plaintiffs have failed to show any prejudice from Defendants' belated assertion of affirmative defenses. Accordingly, the Court will consider these defenses when ruling on Defendants' Motion for Summary Judgment.
With that, the Court now turns to Defendants' motion.
II. BACKGROUND
A. Factual and Legal Background
The facts set out in this section are taken from Defendants' Statement of Facts, [ECF No. 34-1], their appendix of documents submitted in support of their Motion for Summary Judgment, [ECF No. 34-3], and the Amended Petition, [ECF No. 1-1]. As discussed above, the Court accepts as undisputed the facts asserted in Defendants' Statement of Facts. The Court also deems admitted any facts asserted in the Amended Petition that do not contradict those set out in the Statement of Facts.
The City contracts with the Animal Rescue League of Iowa, Inc. ("ARL"), whereby the ARL provides animal control services to the City. [ECF No. 34-1 ¶ 1]. Those services include enforcement of specific sections of the Des Moines City Code ("City Code") as designee of the City's Chief Humane Officer ("CHO"). Id. At all times relevant to this litigation, Defendant Sergeant James Butler served as the City's CHO. See id. ¶ 8.
Under City Code § 18-167(a), "[i]t shall be the duty of the [CHO] to order the owner of any animal which has bitten a person or another animal or any animal suspected of being infected with rabies to confine such animal for a period of ten days at the animal shelter, a veterinary clinic, or a registered kennel." If the animal's owner does not claim the animal at the end of the quarantine period, the animal may be humanely destroyed or (if a dog or cat) put up for adoption as provided for in the City Code. Id. § 18-167(c). Where a contractor operates the animal shelter—which is the case between the City and ARL—"[u]pon a written release of any dog by the [CHO] or his or her designee, [the] contractor shall take possession and ownership of any unredeemed dog" for the purposes of the dog's disposition. Id. § 18-65(c); see also [ECF No. 34-3 at 6–8] (section of the contract between the City and ARL governing "Animal Shelter Services").
The City Code can be accessed at https://library.municode.com/ia/des_moines/codes/code_of_ordinances?nodeId=13242. The City itself links to this website as the online location of its municipal code. See City of Des Moines, City Council Ordinances , https://www.dsm.city/government/city_council_ordinances/index.php (last visited Feb. 11, 2020).
On or about March 19, 2016, an animal control officer employed by the ARL responded to a dog-bite incident at the residence of Plaintiff Cynthia Pesce. [ECF No. 34-1 ¶ 2]. The victim, a local mailman, reported that two dogs exited Pesce's residence, gave chase to him, and one of the dogs bit his ankle. [ECF No. 34-3 at 16, 20]. Pesce kept four dogs at her residence, all of which were pugs or pug mixes. [ECF No. 34-1 ¶ 2]. Three of the dogs had "brown/black" fur, and the fourth had "fawn/black" fur. [ECF No. 34-3 at 15, 17–19].
The animal control officer's incident report indicates Pesce owned two of the dogs, and another individual named Stephanie Pesce owned the other two. See [ECF No. 34-3 at 16]. However, the parties attribute ownership of all four dogs to Plaintiff Cynthia Pesce for the purposes of this case. [ECF Nos. 1-1 ¶ 6; 34-1 ¶ 2].
The animal control officer interviewed Pesce, who informed him that two of the dogs, named Fifel and Layzee, were the two dogs that "go loose." Id at 16. As of the date of the incident, none of the dogs were currently licensed, and Layzee did not have a current rabies vaccine. [ECF Nos. 34-1 ¶¶ 3–4; 34-3 at 19]. The animal control officer was unable to determine which of the four dogs at Pesce's residence bit the mailman. [ECF No. 34-1 ¶ 5]. Because of this uncertainty, and because one of the dogs was not current on its rabies vaccination, the animal control officer seized all four dogs and placed them in a ten-day quarantine at the animal shelter pursuant to City Code § 18-167. Id.
The ARL notified Pesce that the dogs were placed in a ten-day rabies quarantine, that the rabies quarantine would expire on March 29, 2016, and she was required to redeem her dogs by 5:00 p.m. on March 30, 2016. Id. ¶ 6. Butler believed he was appropriately enforcing the City Code by maintaining the quarantine of Pesce's four dogs. Id. ¶ 9.
A handwritten annotation on the notice of quarantine given to Pesce stated she would "need to speak" with Butler before reclaiming her dogs, "if able." [ECF No. 34-3 at 21]; see also [ECF No. 34-1 ¶ 16]. Butler occasionally requested meetings with dog owners whose dogs were subject to a quarantine in order to review the incident and applicable City ordinances with them. [ECF No. 34-1 ¶ 13]. Butler's goal in such meetings was to ensure the dog owner understood the law, why their animal had been quarantined, what was expected of them as pet owners, and to discourage future incidents. Id. ¶ 15. Butler believed this would be useful in Pesce's case because she had received previous citations related to her dogs. Id. ¶ 14. Although Butler wanted to meet with Pesce, the meeting was not mandatory. Id. ¶ 16.
Plaintiff failed both to meet with Butler and to redeem her dogs by 5:00 p.m. on March 30, 2016. Id. ¶¶ 7, 17. Pesce was unable to retrieve her dogs that day because she did not have transportation to the animal shelter; her daughter, who would normally have taken her, was unable to do so because of a work conflict. [ECF No. 1-1 ¶ 12]. Pesce's daughter contacted the animal shelter on March 30, 2016, and explained that her mother would not be able to retrieve her dogs that day due to a lack of transportation. Id. The individual with whom she spoke told her that her mother could retrieve her dogs the following day. Id. It is not clear who this individual was or if Butler knew of this conversation. Ultimately, Butler transferred ownership of the dogs to the ARL after 5:00 p.m. on March 30, 2016, for disposition pursuant to City Code §§ 18-167(c) and 18-65(c). [ECF No. 34-1 ¶ 8]. One reason Butler did this was due to space limitations at the animal shelter, which was consistently at capacity. Id. ¶ 11. He did not transfer ownership of the dogs because Pesce failed to meet with him. Id. ¶ 17. Once Butler transferred ownership of Pesce's dogs to the ARL, Butler had no ability to interfere with that ownership. Id. ¶ 18.
When Pesce went to the animal shelter the next day to retrieve her dogs, she was told ownership of the dogs had been transferred to the ARL, and she was unable to collect them. [ECF No. 1-1 ¶ 12]. Pesce attempted to appeal the forfeiture of her dogs, but her appeals were refused by the City and the ARL. Id. ¶ 13.
The Court takes judicial notice of the state proceedings discussed in this section.
On April 7, 2016, Pesce commenced a civil action in the Iowa District Court for Polk County against the City and the ARL in connection with the seizure of her dogs (the "Multi-Claim Action"). See [ECF No. 4-2 at 17]. In that action, Pesce asserted a state-law conversion claim and a claim under 42 U.S.C. § 1983. Id. at 25–26. She also sought the return of her dogs (i.e. , seized property) under Iowa Code chapters 809 and 809A, as well as declaratory judgments that various City dog ordinances are unconstitutional. Id. at 20–24. Pesce later voluntarily dismissed all claims except for the "return-of-seized-property claim." See id. at 45, 105. The district court issued a ruling dismissing that claim, finding that chapters 809 and 809A of the Iowa Code did not "apply to a dog quarantined pursuant to the statutes of the City of Des Moines relating to impoundment." Id. at 105. Pesce appealed, and the Iowa Court of Appeals affirmed on August 1, 2018. See [ECF No. 11-1 at 7–8, 13].
Pesce also commenced another action in June 2016 in the Iowa District Court for Polk County, seeking a writ of replevin against the ARL for her dogs (the "Replevin Action"). [ECF No. 4-2 at 50]. When Pesce amended her petition to assert that each dog had a market value of $25, the district court transferred the case to the Polk County Small Claims Court. See id. at 75, 85–86. Pesce moved to have the case transferred back to the district court, arguing that the small claims court lacked subject matter jurisdiction over the petition. Id. at 108. The small claims court denied the motion. Id. at 112. Bela moved to intervene after "Ms. Pesce ... transferred ownership of her dogs and assigned all legal claims arising out of the illegal seizure, detention, and fraudulent transfer of her dogs by the ‘City’ to the ARL, to [Bela]." Id. at 114. In its motion to intervene, Bela also moved to transfer the case back to the district court, asserting that the small claims court lacked subject matter jurisdiction. Id. at 115. The small claims court granted the motion to intervene but denied the motion to transfer. Id. at 116, 118. After a hearing at which Plaintiffs offered no evidence in support of their petition, the small claims court dismissed the petition with prejudice. See id. at 120, 130. Plaintiffs appealed the decision to the Iowa District Court for Polk County where they again argued that the small claims court lacked subject matter jurisdiction. Id. at 128–30. The district court affirmed the small claims court's dismissal of the petition and its denial of Plaintiffs' motion to transfer the case. Id. at 130. Plaintiffs appealed that decision to the Iowa Supreme Court, which denied discretionary review. Id. at 135.
In earlier versions of her petition, Pesce alleged that the "declared combined value" of the dogs "exceeds $10,000." [ECF No. 4-2 at 51, 63].
Plaintiffs commenced the present action on March 18, 2018, by filing a petition in the Iowa District Court for Polk County. Id. at 140. This first petition named only the City and Butler as defendants. Id. Plaintiffs allegedly never served this petition. See [ECF No. 6 ¶ 3]. Plaintiffs filed their Amended Petition on June 15, 2018, adding the ARL as a Defendant. [ECF No. 1-1]. The City and Butler removed the case to federal court on June 18, 2018. [ECF No. 1].
The Amended Petition contains four counts. Count I is directed at the ARL only. See [ECF No. 1-1 at 9]. It asks the Court to vacate the judgment of the Iowa small claims court in the Replevin Action. Id. ¶ 22. Count II asserts state-law conversion and trespass claims against the City and the ARL. See id. ¶¶ 27–34. In Count III, Plaintiffs assert several claims, namely, claims: (1) arising under 42 U.S.C. §§ 1983 and 1988 ; (2) for "[v]iolation under Iowa constitution for violation of 4th and 14th Amendment"; (3) "violation of equal protection and takings Clause"; and (4) a "Monell Claim." Id. at 12. Plaintiffs assert that "[a]ll Sub claims are against the City of Des Moines ONLY." Id. In a previous Order, the Court construed that statement to mean Plaintiffs assert the §§ 1983 and 1988 claims against all Defendants, and the remaining claims in Count III against only the City. [ECF No. 16 at 5, 11]. That construction remains the law of the case, and no party has challenged it. Finally, in Count IV, Plaintiffs seek a declaratory judgment against the City finding that various City dog ordinances are unconstitutional. See [ECF No. 1-1 ¶¶ 49–54].
Defendants filed pre-answer motions to dismiss, which the Court granted in part and denied in part. [ECF No. 16]. The Court found Plaintiffs failed to state a claim against the ARL in Count I, and their claims against the City and the ARL in Counts II and III were barred under the doctrine of res judicata (specifically, claim preclusion). Id. at 11, 15. The Court denied a motion by the City and Butler asking the Court to find the claims against them were time-barred. Id. at 16. Following the Court's Order on Defendants' motions to dismiss, the only claims remaining in the case were: (1) Plaintiffs' §§ 1983 and 1988 claims against Butler in Count III; and (2) their declaratory judgment claim against the City in Count IV. Id. at 20. With no claims against it remaining in the case, the ARL was terminated from the case. Id. In a subsequent Motion to Remand, Plaintiffs specified that their declaratory judgment claim against the City is based solely on violations of state law. [ECF No. 44 ¶ 10].
In a self-professed "abundance of caution," Defendants presented arguments as to why Butler is entitled to summary judgment on what they see as possible state constitutional claims asserted against him in Count III. [ECF No. 34-2 at 11–12]. Although the Court cannot fault Defendants for this cautious approach, it would be inappropriate for the Court to consider such arguments. The Court made clear it was construing the Amended Petition such that the only claims asserted against Butler in Count III were Plaintiffs' §§ 1983 and 1988 claims. [ECF No. 16 at 5, 11]. Such claims do not provide redress for state constitutional violations. Stevenson v. Blytheville Sch. Dist. # 5 , 800 F.3d 955, 965 (8th Cir. 2015) ("Section 1983 guards and vindicates federal rights alone."). Consistent with the Court's construction of the Amended Petition, the Court ordered that the §§ 1983 and 1988 claims would be the only claims against Butler to proceed to discovery. [ECF No. 16 at 20]. The parties proceeded with discovery on that basis and, as a matter of procedural fairness, the Court cannot now take up issues that Plaintiffs would have had no reason to prepare for or otherwise litigate.
Following discovery, Defendants filed the instant motion. They argue Butler is entitled to qualified immunity on Plaintiffs' §§ 1983 and 1988 claims against him. They also argue Plaintiffs' declaratory judgment claims against the City are barred by res judicata. As discussed above, Plaintiffs failed to file a timely response to the instant motion, and their untimely response was stricken from the record. [ECF No. 43]. Thus, they present no arguments resisting the motion.
III. STANDARD OF REVIEW
Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Paulino v. Chartis Claims, Inc. , 774 F.3d 1161, 1163 (8th Cir. 2014). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Amini v. City of Minneapolis , 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Even so, at the summary judgment stage, courts must view "the facts in the light most favorable to the nonmoving party and giv[e] that party the benefit of all reasonable inferences that can be drawn from the record." Pedersen v. Bio-Med. Applications of Minn. , 775 F.3d 1049, 1053 (8th Cir. 2015) (quoting Johnson v. Wells Fargo Bank, N.A. , 744 F.3d 539, 541 (8th Cir. 2014) ). To preclude the entry of summary judgment, the nonmovant must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Lacey v. Norac, Inc. , 932 F.3d 657, 659–60 (8th Cir. 2019) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). But "the nonmoving party [need not] produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex , 477 U.S. at 324, 106 S.Ct. 2548.
IV. ANALYSIS
A. Claims against Butler under 42 U.S.C. §§ 1983 and 1988
1. Scope of Plaintiffs' claims
Plaintiffs assert claims against Butler in Count III for violations of 42 U.S.C. §§ 1983 and 1988. Section 1983 creates a cause of action against "[e]very person who, under color of [law], subjects, or causes to be subjected, any citizen of the United States .... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States]." Section 1988 allows a court to award reasonable attorney's fees to a prevailing party in a § 1983 action. See 42 U.S.C. § 1988(b).
Plaintiffs' constitutional claims against Butler appear to focus on two actions: "Butler as the [CHO] and individually violated Ms. Pesce's constitutional rights when he [1] ordered her dogs to be seized illegally and [2] refused to let her have an appeal of his decision." [ECF No. 1-1 ¶ 38]. But the Amended Petition also asserts a constitutional claim stemming from "[t]he forfeiture of the plaintiffs' dogs prior to a hearing." Id. ¶ 47. The Amended Petition does not specify who was responsible for this forfeiture, but Defendants assert in their Statement of Facts that Butler transferred ownership of the dogs to the ARL for disposition. [ECF No. 34-1 ¶ 8]. Construing the pleadings and record in the light most favorable to Plaintiffs, the Court also considers Plaintiffs to have asserted claims against Butler related to the forfeiture of Pesce's dogs.
Just what rights were implicated by these actions is less clear, but Plaintiffs appear to allege Butler's actions violated their right to be free from unreasonable seizures under the Fourth Amendment, the right to procedural due process under the Fourteenth Amendment, the right to equal protection of the laws under the Fourteenth Amendment, and their rights under the Takings Clause of the Fifth Amendment. Id. ¶¶ 37, 43, 44, 47.
The Court's analysis of these potential violations, however, is colored by whether Plaintiffs' claims against Butler are asserted against him in his official or individual capacity. Butler's qualified immunity defense also impacts how the Court evaluates Plaintiffs' claims. Accordingly, before the Court turns to the substance of Plaintiffs' claims, the Court will briefly discuss issues related to the capacity in which Butler is sued, and the legal standard governing his qualified immunity defense.
2. Official/individual capacity; qualified immunity
Plaintiffs assert their §§ 1983 and 1988 claims against Butler in both his official and individual capacities. See [ECF No. 1-1 ¶ 38]. "A suit against a government officer in his official capacity is functionally equivalent to a suit against the employing governmental entity." Veatch v. Bartels Lutheran Home , 627 F.3d 1254, 1257 (8th Cir. 2010). Butler is employed by the City and, thus, Plaintiffs' official capacity claims against him in Count III are claims against the City. In the Court's Order on Defendants' motions to dismiss, it found Plaintiffs' Count III claims against the City were barred by the doctrine of res judicata due to the litigation of related claims in the Multi-Claim Action. See [ECF No. 16 at 15]. The Court's reasoning in support of that conclusion is incorporated here by reference. Plaintiffs cannot escape the preclusive effect of the Multi-Claim Action by asserting claims against Butler in his official capacity. See Everhart v. S. Health Partners, Inc. , Civil No. 4:19-cv-04090, 2019 WL 7134458, at *4–5 (W.D. Ark. Dec. 2, 2019) (finding res judicata barred official-capacity claims against the defendants' employees where earlier litigation adjudicated claims against different employees in their official capacities); Fraction v. Rookstool , 8:17CV292, 2017 WL 3726746, at *4 (D. Neb. Aug. 28, 2017) (finding res judicata barred an official-capacity claim against a county employee where the same issues had been adjudicated in an earlier action against the county). Accordingly, Butler is entitled to summary judgment on Plaintiffs' §§ 1983 and 1988 claims against him in his official capacity.
As to Plaintiffs' §§ 1983 and 1988 claims against Butler in his individual capacity, Butler argues he is entitled to qualified immunity. Qualified immunity "protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citation omitted). Thus, the Court must determine: "(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct." Foster v. Mo. Dep't of Health & Sr. Servs. , 736 F.3d 759, 762 (8th Cir. 2013).
Discussing the "clearly established" prong of the qualified immunity analysis, the Supreme Court has said:
Qualified immunity attaches when an official's conduct " ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " While this Court's case law " ‘do[es] not require a case directly on point’ " for a right to be clearly established, " ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ " In other words, immunity protects " ‘all but the plainly incompetent or those who knowingly violate the law.’ "
White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (alteration in original) (citations omitted). The " ‘clearly established law’ should not be defined ‘at a high level of generality’ " and "must be ‘particularized’ to the facts of the case." Id. at 552 (citations omitted). "Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ " Id. (alteration in original) (citations omitted).
Against this framework, the Court now turns to Plaintiffs' constitutional claims against Butler.
3. Equal protection and takings claims
The Court can quickly dispense with Plaintiffs' claims against Butler arising under the Equal Protection Clause of the Fourteenth Amendment and the Fifth Amendment's Takings Clause.
The Fourteenth Amendment's Equal Protection Clause prohibits states from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Supreme Court has observed that the clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Nowhere in the record is it established that Plaintiffs have been treated differently from others to whom they are similarly situated. In fact, Plaintiffs plead the opposite. They claim "[the City] has a pattern of violating [City Code §] 18-167 because the [CHO] has repeatedly indicated that all dogs alleged to have bitten must be seized without ordering the owner to confine their dogs as prescribed in [City Code § 18-167(a)]." [ECF No. 1-1 ¶ 39]. The uniform application of a law does not give rise to an equal protection claim. The record contains no evidence that Plaintiffs suffered a deprivation of their equal protection rights. Accordingly, Butler is entitled to qualified immunity on Plaintiffs' equal protection claim.
As for Plaintiffs' takings claim, the Takings Clause of the Fifth Amendment provides that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. That the property must be taken for "public use" is determinative here. The undisputed facts show Pesce's dogs were seized and disposed of (i.e., transferred to the ARL) under City ordinances pertaining to the regulation of dogs. Such regulations are within the police power of the state. See Lunon v. Botsford , 946 F.3d 425, 430 (8th Cir. 2019) (noting that dogs are subject to a state's police power and can be "destroyed or otherwise dealt with" if "necessary for the protection" of a state's citizens (quoting Sentell v. New Orleans & C.R. Co. , 166 U.S. 698, 704, 17 S.Ct. 693, 41 L.Ed. 1169 (1897) )); Fabrikant v. French , 691 F.3d 193, 208–09 (2d Cir. 2012) ("Animal control is part of the state's police power."); Porter v. DiBlasio , 93 F.3d 301, 310 (7th Cir. 1996) ("The seizure and disposal of neglected animals falls squarely within the state's police power.").
Because Pesce's dogs were seized and disposed of pursuant to the City's police power, it is not a taking of private property for public use, and Pesce is not entitled to compensation under the Takings Clause. See Porter , 93 F.3d at 310 (finding no Takings Clause violation in connection with the seizure and disposal of the plaintiff's dog where such actions fell within the state's police power); Kiyak v. Town of Fairfield , Civil No. 3:17-cv-1426(AWT), 2019 WL 2895640, at *5 (D. Conn. Mar. 25, 2019) (finding no Takings Clause violation where dogs were seized under a state's dog control statute, which is a valid exercise of a state's police power); Freeman v. Indiana , Cause No. 1:17-CV-317-TLS, 2019 WL 357051, at *12–13 (N.D. Ind. Jan. 29, 2019) (finding no Takings Clause violation where dogs were seized during a police search of the plaintiff's house pursuant to a valid search warrant, which falls under the state's police powers).
Because there is no constitutional violation, Butler is entitled to qualified immunity on Plaintiffs' takings claim.
4. Fourth Amendment claims
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Plaintiffs assert Butler participated in two seizures that violated the Fourth Amendment: the initial seizure of Pesce's dogs by the animal control officer, and the subsequent transfer of the dogs to the ARL without a hearing. See [ECF No. 1-1 ¶¶ 37, 38, 47].
Dogs are property under Iowa law. See Iowa Code § 351.25. Several circuit courts, including the Eighth Circuit, have applied general Fourth Amendment principles when assessing whether the seizure of a dog by state officials is unconstitutional. See generally Andrews v. City of West Branch , 454 F.3d 914, 918 (8th Cir. 2006) ; Lesher v. Reed , 12 F.3d 148, 150–51 (8th Cir. 1994) ; Hardrick v. City of Detroit , 876 F.3d 238, 246 (6th Cir. 2017) ("Even if friendship and ownership usually do not go hand in hand, ‘a dog is property.’ And an officer's entry onto private property to seize a dog must obey the Fourth Amendment's strictures." (citation omitted)); Altman v. City of High Point , 330 F.3d 194, 205–207 (4th Cir. 2003) ; Brown v. Muhlenberg Twp. , 269 F.3d 205, 210–212 (3d Cir. 2001).
The Court first considers Plaintiffs' Fourth Amendment claim as to the initial seizure of Pesce's dogs by the animal control officer. There is no doubt that Pesce's dogs were seized within the meaning of the Fourth Amendment when the animal control officer took them from Pesce's home and impounded them at the animal shelter. There also appears to be no dispute that the animal control officer did not obtain a warrant authorizing the seizure of the dogs. Therefore, in determining whether there was a Fourth Amendment violation, the Court asks "whether this seizure was unreasonable under the circumstances." Andrews , 454 F.3d at 918. "The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer; it does not turn on the subjective intent of the officer." Id. "When the state claims a right to make a warrantless seizure, [the Court] must balance ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ " Id. (citation omitted).
Plaintiffs assert in their Amended Petition that because the seizure violated City Code § 18-167(a), it violated Pesce's Fourth Amendment rights per se. [ECF No. 1-1 ¶ 37]. They argue section 18-167(a) gives the CHO authority to order an animal's owner to confine the animal at an animal shelter, clinic, or kennel; but it does not give the CHO authority to order an animal's seizure. See id. ¶ 39. This is a plausible reading of the ordinance but does not impact the Court's Fourth Amendment analysis. In the past, the Eighth Circuit has found the violation of state law during a seizure is relevant in a Fourth Amendment reasonableness inquiry. See, e.g. , Abbott v. City of Crocker , 30 F.3d 994, 998 (8th Cir. 1994) (concluding that the test for objective reasonableness includes "the fact that the officer lacked authority under state law to make the arrest"). However, those authorities have been abrogated by Supreme Court precedent stressing that "state law [does] not alter the content of the Fourth Amendment." Virginia v. Moore , 553 U.S. 164, 172, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) ; see also Engleman v. Deputy Murray , 546 F.3d 944, 948 n.3 (8th Cir. 2008) (recognizing the abrogation). Indeed, in Moore , the Supreme Court cited approvingly a previous seizure case in which it "held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles." Moore , 553 U.S. at 172, 128 S.Ct. 1598 (citing Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ). Explaining the reasoning in that prior case, the Supreme Court said it "thought it obvious that the Fourth Amendment's meaning did not change with local law enforcement practices—even practices set by rule." Id. Thus, the seizure of Pesce's dogs can still be reasonable under the Fourth Amendment even if it violated City Code § 18-167(a).
There are undoubtedly strong, competing interests in cases involving the seizure of dogs. As the United States Court of Appeals for the Fourth Circuit explained:
The state .... [has] a substantial interest in protecting [its] citizens from all the dangers and nuisances associated with dogs. Dogs may harass or attack people, livestock, or other pets. Dogs can maim or even kill. Dogs may also spread disease or cause property damage. On the other hand, the private Fourth Amendment interests involved are appreciable. Dogs have aptly been labeled "Man's Best Friend," and certainly the bond between a dog owner and his pet can be strong and enduring. Many consider dogs to be their most prized personal possessions, and still others think of dogs solely in terms of an emotional relationship, rather than a property relationship.
Altman , 330 F.3d at 205.
But these interests "wax[ ]" and "wane[ ]" depending on the circumstances of the case. Id. The reasonableness of a dog's seizure often turns on the intrusion of the seizure weighed against the risk posed by the dog—the greater the intrusion, the greater the risk needed to justify it. Compare Azurdia v. City of New York , No. 18-cv-04189-ARR-PK, 2019 WL 1406647, at *7 (E.D.N.Y. Mar. 28, 2019) (finding the plaintiffs stated a Fourth Amendment claim when their complaint alleged that a police officer shot a dog immediately upon entering a residence, even though the dog had been "quiet, calm, and did not bark, lunge, or exhibit any behavior that could be considered ‘aggressive or threatening’ ") with Altman , 330 F.3d 194 at 206 (finding no unconstitutional seizure where an officer shot a rottweiler, "a large and dangerous breed of dog," that had been at large and already attacked one person in the neighborhood).
Relevant to this case, courts have generally found the mere detention of a dog for a prescribed period of time is reasonable when circumstances indicate the dog may be rabid and/or is alleged to have bitten a person. Thus, in Kiyak , the court found an initial seizure and subsequent quarantine of a dog was reasonable when the dog bit a jogger and state law required a fourteen-day quarantine as a precaution with respect to rabies. 2019 WL 2895640, at *3. The court reasoned, "[t]he governmental interest in protection of public health and safety outweighs a dog owner's interest in maintaining possession of a potentially rabid dog that might bite someone else." Id. ; see also Skinner v. Chapman , 326 F. Supp. 2d 431, 433–34 (W.D.N.Y. 2004) (finding the seizure and quarantine of a dog to be reasonable when the dog was "not licensed, had not received a rabies vaccination, and was suspected of being at large and biting a child").
Here, although the animal control officer seized Pesce's dogs, Plaintiffs allege Butler ordered the dogs to be seized. [ECF No. 1-1 ¶ 38]. The Court will assume this establishes his individual liability, should the Court find a constitutional violation. Even so, the Court finds the seizure and ten-day detention of Pesce's dogs was reasonable. Two of Pesce's dogs were alleged to have been at large and gave chase to a local mailman. One of the dogs was alleged to have bitten the mailman. Neither the mailman nor Pesce could identify the dog that bit the mailman, but Pesce confirmed to the animal control officer that two of her dogs were regularly allowed to run at large. None of the dogs were licensed, and one of the dogs' rabies vaccination had lapsed. The dogs were all a similar breed and color. Thus, the animal control officer was faced with four similar dogs, two of which were alleged to have engaged in violent behavior, and all of which were exposed to a dog without a current rabies vaccine. Further, the dogs were impounded in an animal control shelter for a period of ten days, after which Pesce could (ordinarily) retrieve them. In these circumstances, the City's interests in preserving the health and safety of its citizens outweighed Pesce's interests in harboring dangerous, potentially rabid animals. The Court finds the animal control officer's actions (and by extension, Butler's) were reasonable, and there was no Fourth Amendment violation in the dogs' seizure and ten-day quarantine. Without a constitutional violation, Butler is entitled to qualified immunity.
In their brief, Defendants allege an ARL employee named "Tina Updegrove" seized the dogs and ordered them to be quarantined at the animal shelter. [ECF No. 34-2 at 6]. This is not stated in Defendants' Statement of Facts and is contradicted by the allegation in the Amended Petition (which is deemed admitted) that Butler ordered the dogs to be seized. [ECF No. 1-1 ¶ 38]. Because a party cannot use a brief to introduce facts that are not already in the record, the Court disregards Defendants' assertion that Ms. Updegrove ordered the dogs to be seized.
That Pesce ultimately could not retrieve the dogs because of her alleged failure to timely collect them implicates due process concerns, which the Court addresses infra. When the dogs were seized and during their subsequent quarantine, a reasonable officer would not have known of the events that would transpire after the quarantine period that led to Pesce's inability to collect her dogs.
Plaintiffs also allege "[t]he forfeiture of the plaintiffs' dogs prior to a hearing was the second illegal seizure under the Fourth Amendment." [ECF No. 1-1 ¶ 47]. Even if the forfeiture to the ARL is a seizure, this allegation does not raise a Fourth Amendment claim. The Fourth Amendment is concerned with the reasonableness of searches and seizures. Plaintiffs' allegation, which focuses on Defendants' failure to afford Pesce a hearing prior to the disposal of her dogs, implicates procedural protections under the Fourteenth Amendment's Due Process Clause. Accordingly, this claim is properly analyzed under the Fourteenth Amendment, and the Court takes it up below. See Brown v. District of Columbia , 115 F. Supp. 3d 56, 63 (D.D.C. 2015) (analyzing purported Fourth Amendment claims under the Due Process Clause where the plaintiffs "[did] not challenge the reasonableness of the underlying seizures" of their personal property by police, but rather challenged "the constitutionality of the procedures employed following the seizures").
5. Due process claims
a. Exhaustion of state remedies
In the Eighth Circuit, "[e]xhaustion of state remedies is necessary before any federal procedural due process allegations state a claim under § 1983." Wax 'n Works v. City of St. Paul , 213 F.3d 1016, 1020 (8th Cir. 2000). The Court finds Plaintiffs have met this threshold requirement. It is undisputed that once ownership of Pesce's dogs was transferred to the ARL, Butler had "no ability to interfere with that ownership." [ECF No. 34-1 ¶ 18]. It is also undisputed that the City refused to allow Pesce to appeal the transfer, despite her various efforts to do so. [ECF No. 1-1 ¶ 13]. Further, as discussed supra , Plaintiffs have already litigated two state actions to finality in an effort to regain ownership and possession of Pesce's dogs. The Court is aware of no other state remedies Plaintiffs could have pursued, and Defendants have identified none. Thus, Plaintiffs may proceed with their procedural due process claims in this action.
b. Initial seizure and detention of Pesce's dogs
In addition to their claim concerning the forfeiture of Pesce's dogs without a hearing, Plaintiffs allege:
Dogs are property as a matter of law, and the Due Process Clause of the Fifth Amendment to the United States Constitution (and as applied to the States through the Fourteenth Amendment), requires certain procedural safeguards prior to confiscation of property. To be fair or meaningful, the opportunity to be heard must be provided before rights are decided, and this did not occur at any point for the owners of the four pug mixed dogs.
[ECF No. 1-1 ¶ 43]. Plaintiffs therefore appear to raise two procedural due process claims: one for a lack of due process when Pesce's dogs were seized, and one for a lack of due process when ownership of the dogs was transferred to the ARL.
"The Due Process Clause constrains ‘governmental decisions which deprive individuals of "liberty" or "property" interests.’ " Lunon , 946 F.3d at 429 (quoting Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). "Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ....’ " Id. (citation omitted). The Court will assume Plaintiffs had a property interest in Pesce's dogs warranting due process protection. If a plaintiff establishes a protected property interest, " ‘the question remains what process is due,’ which is a question of federal constitutional law." Id. (citation omitted). To determine what process is due, courts balance three factors:
1) the nature and weight of the private interest affected by the challenged official action; 2) the risk of an erroneous deprivation of such interest as a result of the summary procedures used; and 3) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.
Hughes v. City of Cedar Rapids , 840 F.3d 987, 994 (8th Cir. 2016) (citation omitted). Ultimately, "[d]ue process is a flexible concept, requiring only ‘such procedural protections as the particular situation demands.’ " Lunon , 946 F.3d at 430 (citation omitted).
The Court first considers what process was due to Pesce when her dogs were seized and quarantined for ten days. When considering Pesce's private interests in her dogs, federal law has traditionally viewed such an interest as subject to the reasonable exercise of a state's police power. More than a century ago, the Supreme Court declared, "[e]ven if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens." Sentell , 166 U.S. at 704, 17 S.Ct. 693. The Supreme Court has also declared that "property in dogs ... may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right." Nicchia v. New York , 254 U.S. 228, 230, 41 S.Ct. 103, 65 L.Ed. 235 (1920). Section 18-167 of the City Code curtails Pesce's property interest in her dogs when they have bitten someone or are suspected of being infected with rabies, situations that implicate the City's interests in ensuring the health and safety of its citizens. In such circumstances, whether an animal control officer seizes the dogs or Pesce delivers them to an animal shelter herself, Pesce must give up possession of her dogs for a period of ten days. See City Code 18-167(a). The Eighth Circuit has found that a dog owner's "protected property interest wanes" when the dog is found to have violated animal control ordinances aimed at health and safety. Lunon , 946 F.3d at 430. Such is the case here, where two of Pesce's dogs were at large, one bit an individual, none were licensed, and one dog's rabies vaccination had lapsed.
Turning to the risk of an erroneous deprivation, the City Code does not allow for any hearing (pre-or post-deprivation) at which a dog owner can challenge the determination that a dog should be quarantined. Generally, "a pre-deprivation hearing is ‘not constitutionally required where some valid governmental interest is at stake that justifies postponing the hearing until after [the deprivation].’ " Hardrick v. City of Detroit , Case No. 15-13884, 2016 WL 6600039, at *11 (E.D. Mich. Nov. 8, 2016) (alteration in original) (quoting Flatford v. City of Monroe , 17 F.3d 162, 167 (6th Cir. 1994) ) rev'd in part on other grounds , 876 F.3d 238 (6th Cir. 2017). "Such interests include ‘[p]rotection of the health and safety of the public[,]’ which is a ‘paramount governmental interest.’ " Id. (alteration in original) (quoting Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc. , 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) ). The Eighth Circuit has followed this general principle when holding that a pre-deprivation hearing was unnecessary where an animal was seized in circumstances implicating its health and safety. See Nance v. Humane Soc'y of Pulaski Cty. , 667 F. App'x 879, 880 (8th Cir. 2016) (per curiam) (finding no pre-deprivation hearing was necessary where the facts showed the dogs in question were seized "out of an immediate concern for their safety and well-being"). Another court following this principle found the plaintiffs were owed no pre-seizure due process where their "dogs were found unrestrained, unlicensed, abandoned by their owner, or accused of biting another animal or human." Hardrick , 2016 WL 6600039, at *11.
As for post-deprivation due process, the United States Court of Appeals for the Seventh Circuit has stated that "the temporary deprivation of property of slight value requires only modest process." Wall v. City of Brookfield , 406 F.3d 458, 460 (7th Cir. 2005) (finding that the plaintiff's ability to file a petition in state court for the return of her dog was the only process "constitutionally required" when her dog was picked up as a stray and held for sixty days). Other courts have expressed skepticism that the temporary detention of an animal requires any due process protections. See Hardrick , 2016 WL 6600039, at *12 (finding that the "taking of [a dog] by a duly authorized official, where the owner knew who was seizing the dog, where the dog was to be confined, and when the seizure was temporary[,] does not ... raise a constitutional violation" (alteration in original) (quoting Skinner , 326 F. Supp. 2d at 434 )); Kostiuk v. Town of Riverhead , 570 F. Supp. 603, 609 (E.D.N.Y. 1983) (finding no deprivation of property where "the person knows where his or her property is, knows he or she will soon get it back ... and the property is not expected to be and is not, in fact, permanently damaged"); cf. Daskalea v. Wash. Humane Soc'y , 275 F.R.D. 346, 361 (D.D.C. 2011) (noting the defendant was required to give notice to seized animals' owners before "permanently" terminating their interests in them, and observing that "an owner whose pet was humanely destroyed or put up for adoption will not be similarly situated [for due process purposes] to an owner whose pet was merely detained and returned to its owner" (citation omitted)).
Here, the Court finds the second factor weighs in Butler's favor. As stated previously, the animal control officer seized Pesce's dogs under an ordinance directed at public health and safety. Where, as here, the officer had concerns about the dogs' propensity to attack an individual and their possible exposure to rabies, Pesce was not entitled under the Constitution to a pre-seizure hearing. As for the lack of any post-seizure hearing, the Court does not believe temporary deprivations of property, as a rule, are not entitled to due process protections. However, the authorities cited above establish that the risks of loss or harm associated with a temporary deprivation of property are low in situations where the property owner is given adequate notice of why the property has been seized, where it has been taken, and how long it will be impounded. Such is the case here. Pesce was given notice that her dogs were subject to a ten-day quarantine, where they were quarantined, and when she could retrieve her dogs. [ECF No. 34-3 at 21]. Thus, although the City has not implemented procedures that might reduce the risk of erroneous quarantines, the risks associated with such errors (given the minimal interference with a dog owner's property interests) are low.
Finally, the City's interest in placing potentially dangerous dogs in a temporary quarantine to ensure public safety is undoubtedly high. Moreover, the implementation of a pre-deprivation hearing would frustrate that interest because such dogs would remain a threat during that process. It is not clear how feasible it would be to implement a post-deprivation hearing as to the appropriateness of a quarantine. Even assuming it would be feasible, after weighing the relevant due process factors, the Court finds such a hearing is not constitutionally required on the facts of this case. The Court finds there was no due process violation stemming from the seizure of Pesce's dogs. Accordingly, Butler is entitled to qualified immunity on this aspect of Plaintiffs' due process claim.
Even if there was a due process violation, Butler would still be entitled to qualified immunity. As the previously cited authorities show, the due process requirements for temporary deprivations of property undertaken in furtherance of a public health and safety concern are generally low. Even if more due process protections were necessary here, the law is not so clear that such a conclusion is beyond debate.
c. Forfeiture of Pesce's dogs without a hearing
The Court next turns to Plaintiffs' claim concerning the forfeiture of Pesce's dogs to the ARL without a hearing. The City, through Butler, transferred ownership of Pesce's dogs to the ARL after Pesce failed to recover the dogs from the animal shelter at the expiration of the quarantine period. [ECF No. 34-1 ¶¶ 7–8]. This is analogous to claims involving the disposition by the state of abandoned property. In such cases, "[t]he essential elements of due process, in its sense of fair procedure, are notice that your property may be taken away from you and an opportunity to be heard before the property is taken away for good." Schluga v. City of Milwaukee , 101 F.3d 60, 62 (7th Cir. 1996). The Court will first consider the adequacy of the notice in this case, followed by whether a hearing was necessary before ownership of Pesce's dogs was transferred to the ARL.
Property owners must be given notice so they "can pursue available remedies for [the property's] return." City of West Covina v. Perkins , 525 U.S. 234, 240, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). Although there is no rule specifying the precise content of such notice, the notice must provide "sufficient information about the seizure [of the property] to enable the owner to identify for himself [or herself] the available remedies to recover it." Avila v. Dailey , 246 F. Supp. 3d 347, 363 (D.D.C. 2017) (citing Perkins , 525 U.S. at 240, 119 S.Ct. 678 ). It follows that notice containing false information about how to retrieve seized property—which, by its nature, hinders a property owner from determining how to recover the property—does not satisfy the notice requirements of due process. See id. at 364 (finding the defendant would have violated the Due Process Clause if he falsely informed the plaintiff about how to recover a seized automobile); Thompson v. Roob , No. 1:05-cv-0636-SEB-VSS, 2006 WL 2990426, at *7 (S.D. Ind. Oct. 19, 2006) (granting summary judgment on the plaintiffs' procedural due process clam where Medicaid denial notices contained both correct and incorrect eligibility standards, which the court found created "a high likelihood of conflation or misunderstanding of what the statutory standard actually is"); Fridman v. City of New York , 183 F. Supp. 2d 642, 653 (S.D.N.Y. 2002) ("[W]here it is shown that municipal employees purposefully made oral misrepresentations of applicants' rights in order to reduce the number of fair hearings, or otherwise interfered with procedural due process mechanisms, a due process violation occurred.").
Here, Pesce was given notice that her dogs were seized, the duration of the quarantine, and what she had to do to recover them. [ECF No. 34-1 ¶ 6]. Specifically, Pesce was required to: (1) pay any fees associated with the quarantine; and (2) pick up her dogs within twenty-four hours after the quarantine expired. [ECF No. 34-3 at 21]. Moreover, the notice clearly stated if Pesce did not retrieve her dogs by that deadline, ownership of the dogs would be transferred to the ARL. Id. This notice was sufficient for the purposes of due process.
However, Plaintiffs claim (and Defendants admit) that on the day Pesce was supposed to retrieve her dogs, Pesce's daughter "called animal control and explained that she couldn't get out of work and the animal control said it was fine that Ms. Pesce could pick [up her dogs] the following day." [ECF No. 1-1 ¶ 12]. Giving Plaintiffs the benefit of all reasonable inferences, the Court assumes this information made its way back to Pesce. This new information about how Pesce could retrieve her dogs was ultimately incorrect; Butler still transferred ownership of the dogs to the ARL on the day Pesce was originally supposed to retrieve them. [ECF No. 34-1 ¶¶ 8, 10]. Because Pesce was falsely informed about the procedures for retrieving her dogs—specifically, the timeframe in which she could do so—notice pertaining to the disposition of the dogs did not comport with the requirements of due process.
Defendants' Statement of Facts does not address or otherwise contradict this allegation.
Even so, that does not end the Court's inquiry. Plaintiffs' claim is against Butler in his individual capacity. It is axiomatic that a defendant sued in his or her individual capacity is only liable for his or her own conduct. Gorman v. Bartch , 152 F.3d 907, 914 (8th Cir. 1998) ; see also Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right."). Here, the due process violation for lack of adequate notice is not the transfer of ownership of Pesce's dogs to the ARL; it is the provision of inaccurate information about the retrieval of Pesce's property. See Avila , 246 F. Supp. 3d at 364 (finding the provision of false information about how to retrieve a seized vehicle "constitute[d] a deprivation of procedural due process"). Plaintiffs do not allege Butler incorrectly informed Pesce's daughter that Pesce could retrieve the dogs the next day; in fact, Plaintiffs do not identify the individual who provided this information. Nor do Plaintiffs allege Butler directed this person (assuming it was not Butler) to misinform Pesce's daughter. The record is silent as to these facts, which are critical to determining Butler's liability.
To preclude the entry of summary judgment, Plaintiffs (as the nonmovants) must make a sufficient showing on every essential element of their case for which they have the burden of proof at trial. Lacey , 932 F.3d at 659–60 ; see also B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist. , 732 F.3d 882, 886 (8th Cir. 2013) ("A complete failure by the non-moving party ‘to make a showing sufficient to establish the existence of an element essential to that party's case ... necessarily renders all other facts immaterial.’ " (quoting Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 )). The record does not establish Butler was involved in giving Pesce deficient notice, a necessary element of Plaintiffs' due process claim against him, and one for which Plaintiffs have the burden of proof at trial. Instead, the record merely shows "the animal control said it was fine that Ms. Pesce could pick ... up [the dogs on] the following day." [ECF No. 1-1 ¶ 12]. " ‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial,’ and summary judgment is appropriate." Farmers Coop. Soc'y, Sioux Ctr., Iowa v. Leading Edge Pork LLC , No. 16-CV-4034-LRR, 2017 WL 3097163, at * 7 (N.D. Iowa July 20, 2017) (quoting Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) ). On this record, no rational trier of fact could conclude Butler was involved in informing Pesce she could retrieve her dogs after the day specified in her written notice. Accordingly, Butler is entitled to summary judgment on this due process claim as it relates to inadequate notice.
The Court next considers whether Pesce was entitled to a hearing prior to the forfeiture of her dogs. Although a hearing is one of the hallmarks of procedural due process, it is ultimately only required if the circumstances "demand[ ]" it. Lunon , 946 F.3d at 430. As discussed above, to determine whether additional procedures are necessary under the circumstances, the Court considers Pesce's property interest in her dogs; the risks of erroneous deprivations; and the government interests involved and any burdens resulting from additional procedures. Hughes , 840 F.3d at 994.
The Court assumes without deciding that the failure to afford Pesce a hearing can be attributed to Butler. The City Code does not allow for a pre-forfeiture hearing in the case of dogs untimely retrieved from quarantine. In this respect, Butler did not deprive Pesce of a hearing so much as the City did by failing to allow for one.
As to Pesce's property interest in her dogs, the City Code limits this interest when a dog owner fails to timely retrieve his or her dog after a period of quarantine. Section 18-167(c) of the City Code states, "[i]f the [quarantined] animal is not claimed after the ten-day period, it may be humanely destroyed or, if a dog ..., may be put up for adoption as provided in section 18-65 ... of this chapter." In relevant part, section 18-65 of the City Code allows the CHO to release any unclaimed dog to the ownership and possession of a contractor operating the animal shelter (here, the ARL) for the purposes of the dog's disposition. See City Code § 18-65(c). The CHO's powers are discretionary—he may dispose of any unclaimed dog—and neither sections 18-167(c) nor 18-65(c) specify what considerations, if any, the CHO must weigh when exercising this discretion.
This ambiguity would be problematic in a facial challenge to these ordinances, but such a challenge is not before the Court. It is sufficient for present purposes to note the ordinances subject an individual's property interest in his or her dog to forfeiture when the dog is not timely retrieved from quarantine. Also, the statutes' ambiguity is tempered in this case where the record is clear—and it is undisputed—that to recover her dogs, Pesce needed only to pay the fees associated with the quarantine and pick up her dogs by the designated time. [ECF Nos. 1-1 ¶¶ 10, 12; 34-1 ¶¶ 6, 16–17; 34-3 at 21].
But this also means the risk of erroneous deprivations should generally be low because there are no real factual disputes to resolve or legal determinations to make. Either the fees are paid and the retrieval attempt is timely, or they are not. Animal control personnel should be able to make these determinations by reference to the animal shelter's routine business records. Thus, in most cases a hearing will be unnecessary, and—tying into the third due process factor—any requirement that a hearing be held before ownership of a dog is transferred to the ARL will be a waste of government time and resources. Further, it is undisputed that timely transfer of an unclaimed dog from an animal shelter to the ARL is necessary to prevent overcrowding at the shelter. [ECF No. 34-1 ¶ 11]. Consequently, any unnecessary delay in such a transfer frustrates the City's efforts to control the population of its animal shelters.
This case, however, presents a situation where additional process could be useful. If, as Pesce alleges, she was told she could collect her dogs the day after that which was stated in her written notice, she should have had some forum in which to present that claim. There may be other situations where such a forum is useful—perhaps, for example, if an individual who paid quarantine fees lost ownership of his or her dog because the payment was not properly recorded by animal shelter employees. Yet, it does not follow that a pre-forfeiture hearing is the type of process that is necessary. It may be more appropriate to implement an appellate process whereby an aggrieved dog owner can challenge a forfeiture of his or her dog to the ARL. But if that is so, Plaintiffs unambiguously claim the City—not Butler—is responsible for Pesce's inability to appeal the forfeiture of her dogs to the ARL. [ECF No. 1-1 ¶ 41]. Ultimately, the Court need not determine whether Pesce's constitutional rights were violated when ownership of her dogs was transferred to the ARL without a hearing. The Court finds the law is not so clearly established that a reasonable government employee in Butler's position would know that a hearing was necessary in these circumstances. Accordingly, Butler is entitled to qualified immunity on Plaintiffs' due process claim pertaining to the lack of a hearing before ownership of Pesce's dogs was transferred to the ARL.
6. Conclusion as to Butler
For the foregoing reasons, the Court finds Butler is entitled to summary judgment on Plaintiffs §§ 1983 and 1988 claims against him.
B. Claims against the City
In Count IV of the Amended Petition, Plaintiffs assert a claim against the City seeking a declaratory judgment that sections 18-59.1 and 18-64 of the City Code violate their rights under the Iowa Constitution. [ECF Nos. 1-1 at 16; 44 ¶ 10]. Defendants argue Plaintiffs could have pursued this claim in the Multi-Claim action but did not, and thus their claim is now barred under the doctrine of res judicata. The Court agrees.
"Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." Allen v. McCurry , 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citing 28 U.S.C. § 1738 ). Here, Defendants base their res judicata defense on the judgment of the Iowa District Court for Polk County in the Multi-Claim Action. Therefore, because the decision on which Defendants rely comes from an Iowa court, the Court must look to Iowa law to determine the preclusive effect of that decision.
Under Iowa law, "a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action." Peppmeier v. Murphy , 708 N.W.2d 57, 63 (Iowa 2005) (citation omitted). Thus, the party invoking claim preclusion must establish three elements: (1) "the parties in the first and second action were the same"; (2) "the claim in the second suit could have been fully and fairly adjudicated in the prior case"; and (3) "there was a final judgment on the merits in the first action." Arnevik v. Univ. of Minn. Bd. of Regents , 642 N.W.2d 315, 319 (Iowa 2002).
As to the scope of a judgment's preclusive effect, claim preclusion "applies not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which could have been offered for that purpose." Id. "Therefore, a party must litigate all matters growing out of a claim, and claim preclusion will apply ‘not only to matters actually determined in an earlier action but to all relevant matters that could have been determined." Pavone v. Kirke , 807 N.W.2d 828, 835 (Iowa 2011) (citations omitted); see also Donahue v. Am. Farmers Mut. Cas. Co. , 380 N.W.2d 437, 439 (Iowa Ct. App. 1985) ("Under the defense of res judicata, the only crucial fact is whether the second claim arose out of the same transaction or set of operative facts as plaintiff's first claim."). Consequently, "[c]laim preclusion may preclude litigation on matters the parties never litigated in the first claim." Pavone , 807 N.W.2d at 835. As to the public policy behind this approach, the Iowa Supreme Court has explained:
The policy of the law underlying claim preclusion is that a claim cannot be split or tried piecemeal. Thus, a party must try all issues growing out of the claim at one time and not in separate actions. An adjudication in a prior action between the same parties on the same claim is final as to all issues that could have been presented to the court for determination. Simply put, a party is not entitled to a "second bite" simply by alleging a new theory of recovery for the same wrong.
Id. at 835–36 (quoting Bennett v. MC No. 619, Inc. , 586 N.W.2d 512, 516–17 (Iowa 1998) ).
In the Multi-Claim Action, Pesce asserted claims against the City and the ARL for state-law conversion and violation of 42 U.S.C. § 1983. [ECF No. 4-2 at 25–26]. She also sought the return of her dogs under Iowa Code chapters 809 and 809A, and a declaratory judgment that sections 18-58, 18-59.1, and 18-64 of the City Code are unconstitutional. Id. at 20–24. Pesce voluntarily dismissed all claims in that action except for the "return-of-seized-property claim." See id. at 45, 105. The district court ultimately dismissed that claim, and the Iowa Court of Appeals affirmed. See id. at 105; [ECF No. 11-1 at 7–8, 13].
In considering the preclusive effect of the Multi-Claim Action, the Court first considers the similarity of the parties in this and the earlier dispute. Claim preclusion applies to the parties to an earlier action and their privies. See Peppmeier , 708 N.W.2d at 63. Under Iowa law, "[a] privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase." Goolsby v. Derby , 189 N.W.2d 909, 914 (Iowa 1971). Pesce and the City were both parties in the Multi-Claim Action. Bela was not, but the Court finds Bela became Pesce's privy when Pesce transferred to it ownership of the dogs and all legal claims arising from their seizure and detention. See [ECF No. 4-2 at 114]. Thus, the first claim-preclusion factor is satisfied.
The Court next considers whether Plaintiffs had an opportunity in the Multi-Claim Action to fully and fairly adjudicate their present declaratory judgment claim. The Iowa District Court has broad general jurisdiction over criminal, civil, and other matters. See Iowa Code. § 602.6101. It also has the power to issue declaratory judgments. Iowa R. Civ. P. 1.1101. But equally important (if not more so), both the present action and the Multi-Claim Action are premised on the same operative facts. See Donahue , 380 N.W.2d at 439 (stating the "only crucial fact is whether the second claim arose out of the same transaction or set of operative facts as plaintiff's first claim"). Both cases concern—and the claims therein arise from—the alleged wrongful seizure of Pesce's dogs in March 2016 and Defendants' failure to return them. See [ECF Nos. 1-1 at 2; 4-2 at 17–20]. The factual assertions in the Amended Petition are largely copied from the petition in the Multi-Claim Action. See [ECF Nos. 1-1 ¶¶ 5–20; 4-2 at 17–20]. The only notable differences between the facts alleged in the two petitions are that the current petition omits details about the dogs' licensing status but includes descriptions of related state-court proceedings. See [ECF Nos. 1-1 ¶¶ 18–19; 4-2 at 18].
It is true that Pesce voluntarily dismissed (without prejudice) all her claims in the Multi-Claim Action except for her return-of-seized-property claim. But that, too, was premised on Defendants' seizure and failure to return her dogs. See [ECF No. 4-2 at 20] ("The city of Des Moines and the ARL illegally seized Ms. Pesce's dogs and have illegally refused to return her dogs after the quarantine period pursuant to the City ordinance."). Pesce was required to litigate "all issues that could have been presented to the court for determination" in that case. Pavone , 807 N.W.2d at 836 (citation omitted). She cannot colorably argue her declaratory judgment claim in this matter could not have been presented in the Multi-Claim Action; indeed, she originally presented it there.
Ultimately, Pesce asserted in the Multi-Claim Action several different claims arising from the seizure and forfeiture of her dogs. To escape claim preclusion under Iowa law, if Pesce chose to litigate one such claim, she had to litigate all of them. And there is no basis in Iowa law to distinguish for these purposes between claims Pesce voluntarily dismissed and those she never asserted in the first place. The Court concludes Pesce had an opportunity in the Multi-Claim Action to litigate the declaratory judgment claim she is pursuing in this matter.
Lastly, the Court must determine whether the decision in the Multi-Claim Action was a final decision on the merits. The Iowa District Court dismissed Pesce's return-of-seized-property claim, concluding that the statutes on which she relied did not afford her the relief she sought. See [ECF No. 4-2 at 105]. Although the district court's ruling did not specify whether its dismissal was with or without prejudice, it was nevertheless a ruling on the merits. The Iowa Rules of Civil Procedure provide that dismissals are adjudications on the merits unless they: (1) state otherwise; (2) are voluntary dismissals under Iowa Rule of Civil Procedure 1.943; or (3) are based on lack of subject matter jurisdiction or improper venue. Iowa R. Civ. P. 1.946. The district court's decision did not state that it was without prejudice or otherwise not on the merits. Pesce did not voluntarily dismiss the claim. In dismissing Pesce's return-of-seized-property claim, the district court found she was not entitled to relief as a matter of law under the statutes on which she relied; it was therefore not a dismissal for improper venue or lack of jurisdiction. Accordingly, the dismissal was on the merits for the purposes of claim preclusion.
With all three claim-preclusion factors satisfied, the Court finds Plaintiffs are barred from pursuing their Count IV declaratory judgment claim in this action. The claim is precluded by res judicata on account of the final judgment on Pesce's return-of-seized-property claim in the Multi-Claim Action. Thus, the City is entitled to summary judgment.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment, [ECF No. 34], is GRANTED. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants and close this matter.
IT IS SO ORDERED.