Opinion
No. 99-1363
January 20, 2000
REPORT AND RECOMMENDATION
This cause is before the Court on Defendants' Motion to Dismiss (d/e 8).
I. FACTS ALLEGED IN THE COMPLAINT
Alysha Bruninga and Jason Wood own a pit bull breed of dog named "Briar" which they keep at their home at 205 Rogers Road, Marquette Heights, Illinois. On September 28, 1999, Briar was in a nearby neighbor's yard. While in the neighbor's yard, Briar had an encounter with the neighbor's two German shepherd breed of dogs. The encounter between the dogs resulted in Briar receiving a scar on his back and one of the German shepherds receiving scratches. However, neither animal required veterinary treatment.
Concerned about removing Briar from her yard, the neighbor telephoned Marquette Heights' ("the City's") animal control. Animal control responded and transported Briar to the dog pound. After being notified that Briar was in the dog pound, Bruninga and Wood retrieved their dog from the dog pound by paying a $100.00 fee.
Thereafter, two police officers went to the reporting neighbor's residence and informed her that she needed to file a complaint which the officers had prepared for her signature. That same day, Donald E. Brooks, the City's Chief of Police, caused to be issued to Bruninga and Woods a notice of a vicious dog pertaining to Briar pursuant to the City's Ordinance number 371.
On October 13, 1999, two police officers went to Bruninga's and Wood's residence and informed Bruninga that they were there to impound Briar until she complied with the City's vicious dog ordinance. Accordingly, the officers seized Briar pursuant to Marquette Heights' ordinance 10-7-3 et seq. and impounded the dog. On October 22, 1999, Bruninga and Wood retrieved the dog by filling out the papers which were required under the local ordinance, including paying a $25.00 license application fee and a $100.00 impoundment fee.
Bruninga and Wood have now filed the instant case, pursuant to 42 U.S.C. § 1983, alleging that the City and Brooks denied the Plaintiffs their due process rights guaranteed by the Fourth and Fourteenth Amendments. In addition, Bruninga and Wood ask the Court to declare Marquette Heights' vicious dog ordinance unconstitutional. The City and Brooks, in turn, have moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. LEGAL STANDARD FOR MOTIONS TO DISMISS
In ruling on a motion to dismiss, the Court "must accept well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984). Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir. 1978). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957).
III. ANALYSIS
The City and Brooks argue that Bruninga's and Wood's Complaint should be dismissed because the Fourteenth Amendment's due process clause is not violated when a state employee negligently or intentionally deprives an individual of his property provided that the state makes a meaningful post-deprivation remedy available. Here, the State of Illinois provides several common law remedies to Bruninga and Wood which would provide adequate compensation for their alleged property loss. Therefore, the City and Brooks argue that Bruninga's and Wood's Complaint fails to state a cause of action upon which relief can be granted. The City and Brooks rely exclusively upon the United States Supreme Court's opinions of Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984), in support of their motion to dismiss.
Initially, the Court notes that although the City and Brooks ask the Court to dismiss the Complaint in its entirety, they have made no argument(s) regarding Bruninga's and Wood's Fourth Amendment claim or their claim that the City's ordinance is unconstitutional. The Court is loathe to address the constitutionality of any local ordinance without at least some briefing by the parties on this issue. Likewise, the Court is not inclined to recommend dismissal of Bruninga's and Wood's Fourth Amendment claim without the City or Brooks citing some basis and authority for the Court as to why that claim should be dismissed.
To the extent that the City and Brooks are arguing that Bruninga's and Wood's Fourth Amendment claim should be dismissed based upon Parratt and Hudson, their argument is incorrect. As the United States Court of Appeals for the Seventh Circuit has noted, "the Supreme Court has not retrenched from its seminal holding in Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 481, 5 L. Ed.2d 492 (1961), that a substantive Fourth Amendment violation gives rise to a cognizable § 1983 action regardless of the existence of state tort remedies." Guenther v. Holmgreen, 738 F.2d 879, 882-83 (7th Cir. 1984); Wolf-Lillie v. Sonquist, 699 F.2d 864, 871-72 (7th Cir. 1983); McCrimmon v. Kane County, 606 F. Supp. 216, 221 (N.D. Ill. 1985). In fact, "[t]wo separate Seventh Circuit panels and various other courts and commentators have recognized that Parratt is inapplicable where the plaintiff asserts a violation of substantive constitutional guarantees — e.g., Fourth Amendment protections — as distinguished from a violation of his procedural due process rights." Guenther, 738 F.2d at 882 (citing cases).
Accordingly, the Court will limit this Report and Recommendation to whether Bruninga's and Wood's Complaint states a cause of action under § 1983 for a violation of their procedural due process rights under the Fourteenth Amendment.
In considering a claim that procedural due process has been denied, the Court must ask two questions: "the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted); Joihner v. McEvers, 898 F.2d 569, 570 (7th Cir. 1990). The City and Brooks do not challenge that Bruninga and Wood had a substantial property interest in maintaining their rights in their seized dog, and rightfully so. See Porter v. DiBlasio, 93 F.3d 301, 306 (7th Cir. 1996) (holding that "there can be no dispute that an animal owner has a substantial interest in maintaining his rights in a seized animal."). Rather, the City and Brooks rely upon the second part of the test in support of their motion to dismiss.
The United States Supreme Court has established that "[t]he fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Matthews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). "The presumption is that an individual is entitled to notice and an opportunity for a hearing prior to the state's permanent deprivation of his property interest." Porter, 93 F.3d at 305; Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Goss v. Lopez, 419 U.S. 565, 579 (1975).
However, a pre-deprivation hearing is not always required. Porter, 93 F.3d at 305. In some circumstances, "a statutory provision for a postdeprivation hearing, or a common law tort remedy for erroneous deprivation [of a liberty or property interest], satisfies due process." Zinermon v. Burch, 494 U.S. 113, 128 (1990) (citations omitted). In Parratt v. Taylor, 451 U.S. 527, 541-44 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, (1986), the [Supreme] Court held that a negligent deprivation of a constitutionally protected property interest caused by a state employee's random, unauthorized conduct does not give rise to a § 1983 procedural due process claim unless the state fails to provide an adequate postdeprivation remedy. . . . The Court reasoned that in a situation where the state cannot predict and guard in advance against a deprivation, a postdeprivation tort remedy is all the process the state can be expected to provide, and is constitutionally sufficient.
Cushing v. City of Chicago, 3 F.3d 1156, 1164 (7th Cir. 1993) (footnote omitted). In Hudson v. Palmer, 468 U.S. 517, 533 (1984), the Supreme Court extended Parratt's rationale to include intentional conduct by state employees. Finally, a pre-deprivation hearing may not be necessary where the state must of necessity act quickly, see Logan, 455 U.S. at 436, 102 S. Ct. at 1158, or where the degree of the deprivation is not serious and the procedures underlying the decision to effect the deprivation are adequate to address the risk of an erroneous deprivation, see Memphis Light, Gas, Water Div. v. Craft, 436 U.S. 1, 19, 98 S. Ct. 1554, 1565, 56 L. Ed.2d 30 (1978), a postdeprivation hearing or the availability of a common law tort remedy may satisfy due process. Porter, 93 F.3d at 305-06.
In the instant case, the Court finds that the Parratt/Hudson exception does not apply because the Court cannot say that the City's and Brooks' actions were "random and unauthorized." On the contrary, the City's and Brooks' actions were authorized by a local ordinance. As the Seventh Circuit explained, "[i]n its most fundamental form, . . . Zinermon holds only Porter was not cited by Plaintiffs or Defendants. that predictable deprivations of liberty or property which flow from authorized conduct are compensable under § 1983." Easter House v. Felder, 910 F.2d 1387, 1402 (7th Cir. 1990) (en banc). The deprivation alleged by Bruninga and Wood was predictable because it was done pursuant to the local ordinance, and therefore, their Complaint is actionable under § 1983.
The Court finds Porter to be on point. In Porter, the Seventh Circuit found that the owner of nine horses had stated a cause of action for violating his due process rights against defendants who had allegedly seized his horses, pursuant to a Wisconsin statute, and terminated his property interest in his horses without notice and an opportunity for a hearing. Porter, 93 F.3d at 306-09.The Seventh Circuit based its ruling on two grounds. First, "the Wisconsin statutes at issued fail[ed] to require that animal owners be provided an opportunity for a hearing prior to the termination of their ownership rights." Id. at 308. Likewise, the City's ordinance in the instant case does not require a pre-deprivation hearing; rather, the decision to grant or deny a hearing is within the police committee's discretion. Second, the termination of the plaintiff's ownership rights was predictable and authorized, at least by custom of policy, because the complaint alleged that individuals were routinely deprived of their animals without a pre-deprivation hearing. Id. at 309-10. Thus, the defendants' action was not "random and unauthorized." Id. Likewise, Bruninga and Woods have alleged that Brooks issued a notice of vicious dog regarding "Briar" pursuant to a local ordinance which granted Brooks the discretion to do so without the necessity of notice and a hearing. Thus, the action was predictable, not random, and authorized.
Furthermore, the timing of the events alleged in the Complaint indicate that the general rule (i.e., that due process requires a pre-deprivation hearing) should apply rather than any of the exceptions. The Complaint alleges that the incident between the dogs occurred on September 28, 1999. However, the police did not seize Bruninga's and Wood's dog pursuant to the vicious dog ordinance until October 13, 1999. This delay causes two problems for the City and Brooks. First, the Court believes that at some point during this time period, it would have been practicable for the City to have given Bruninga and Wood a hearing. See Logan, 455 U.S. at 436 (holding that post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable); see also Vail v. Board of Educ. of Paris Union Sch. Dist. No. 95, 706 F.2d 1435, 1447-48 (7th Cir. 1983) (Eschbach, J., concurring) (stating that Parratt does not govern employment termination where pre-termination hearing is practicable). Second, this delay undercuts any good-faith basis which the City and/or Brooks might have had to argue that quick action was essential. Logan, 455 U.S. at 436.
In short, the Court does not believe that the Parratt/Hudson exceptions apply in this case. See Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984) (noting that Parratt "is not a magic wand that can make any section 1983 action resembling a tort suit disappear into thin air.").
Wherefore, the Court RECOMMENDS that Defendants' Motion to Dismiss (d/e 8) be DENIED. The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.