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Harvey v. Morabito

United States District Court, N.D. New York
Jun 17, 2003
Civil No. 9:99-CV-1913 (HGM/GLS) (N.D.N.Y. Jun. 17, 2003)

Summary

noting that the owner of a dog seized by police failed to state a claim for a due process violation because the owner had "various procedural mechanisms" available to him, including "making a simple demand"

Summary of this case from Grant v. Am. Soc'y for the Prevention of Cruelty to Animals

Opinion

Civil No. 9:99-CV-1913 (HGM/GLS)

June 17, 2003.

KENNETH D. HARVEY, Plaintiff, Pro Se.

ANTHONY M. GARRAWAY, Plaintiff, Pro se.

EARL D. BUTLER, ESQ., Butler, Allen Law Firm, for the Defendant.


Report and Recommendation


This matter has been referred to the undersigned for a report and recommendation by the Honorable Howard G. Munson, Senior District Court Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). See Decision and Ord., May 7, 2003; Dkt. No. 43 (reciting referral and procedural history) ("May 7, 2003, Ord."). Before the court is a motion for summary judgment by the defendant, Paul Morabito, seeking dismissal of a civil rights complaint filed by pro se plaintiffs, Kenneth Harvey and Anthony Garraway. (Dkt. No. 18). For the reasons that follow, the court recommends that the District Court grant the motion.

I. Procedural Background

On February 22, 2000, Harvey and Garraway filed an amended civil rights complaint in compliance with a conditional order of dismissal issued by District Court Judge Lawrence E. Kahn. Dkt. Nos. 4, 7-8. After Morabito answered, this court conducted a case management conference and issued a scheduling order ("UPSO") which set a December 7, 2001, motion filing deadline. Dkt. Nos. 16-17.

The detailed history of this litigation is recited in the May 7, 2003, order, familiarity with which is presumed.

On November 13, 2001, Morabito timely filed his summary judgment motion. Dkt. Nos. 18-22; see also, L.R. 7.1(b)(1)(E)(1) (exempting summary judgment motions involving pro se litigants from 7.1(b)(1)), and 7.1(b)(2) and UPSO (requiring that movant's motion papers be filed with the court on or before the motion filing deadline). A day later, the court issued a Notification to Harvey and Garraway that explained their motion response obligations, and the adverse consequences associated with their failure to meet them. Dkt. No. 25. The Notice provided, inter alia:

Pursuant to Local Rule 7.1 . . ., you are required to submit the following papers in opposition to the motion: (i) a memorandum of law (containing relevant factual and legal argument); (ii) one or more affidavits in opposition to the motion; and, (iii) a short and concise statement of material facts to which you claim there are genuine issues in dispute . . .
Any factual assertions in the affidavits submitted by the defendant(s) will be accepted by the Court as being true unless you submit affidavits or other documentary evidence that contradicts the assertions of the defendant(s).
If you do not submit a short and concise statement of material facts as to which you claim there are genuine issues in dispute, all material facts set forth in the statement filed and served by the defendant(s) shall be deemed admitted.
If you do not respond in opposition to the motion, summary judgment, if appropriate, will be entered against you . . . If summary judgment is granted as to your entire complaint, you (sic.) case will be dismissed and there will not be any trial concerning any aspects of your asserted complaint.

Id. (emphasis in the original).

On December 7, 2001, Garraway filed a joint response for both plaintiffs. Dkt. No. 25. Citing the wrong Local Rule, he incorrectly argued that the motion was untimely. Id. The response failed to comply with the Local Rules and the admonitions contained in the Notice. There was no affidavit in opposition to the motion, no statement of disputed material facts, and no memorandum of law. Id. Accordingly, and consistent with the Local Rules and the Notice, the defendant's statement of material facts should be deemed admitted. L.R. 7.1(a)(3). However, the response also contained a request, stating: "In the event that the court rejects . . . our initial response to the Defendant's motion, we respectfully request . . . that an extension for filing another formal response be granted." Dkt. No. 26 at 3.

He also argued that the motion was predicated on inadmissible evidence, apparently referencing an unsigned deposition. While a deposition was attached to Morabito's motion, the Statement of Material Facts relied principally on sworn affidavits of Morabito and Barbara Ulrich. In any event, Garraway admits that he received his copy of the deposition on November 30, 2001, and the issue is moot.

After the case was transferred to Judge Munson and the pending summary judgment motion referred to this court, the court detected plaintiffs' earlier extension request. Accordingly, the court issued an order on September 9, 2002, affording them thirty (30) days to respond. Dkt. No. 28. In that order, the court once again informed them of their obligation to supply affidavits, a statement of disputed material facts, and a memorandum of law. Also, the court warned that the failure to comply was, itself, a basis to grant the defendant's motion under the Local Rules and, in any event, would result in a decision heavily influenced by the defendant's version of the facts. Id.

After the order was twice returned as undeliverable because both plaintiffs had failed to comply with Local Rule 10.1(b)(2) (address change notification), the court reissued the order, and reset the compliance deadline. See Min. Entries, Oct. 10 and 17, and Nov. 12, 2002. On November 18, 2002, Harvey wrote and stated that he would not file a supplemental response because he intended to rely on Garraway's 2001 response. Dkt. No. 38. After the court subsequently advised Garraway one last time of his obligation to respond, he wrote on April 9, 2003, indicating that he did not intend to reply further and would rely on his 2001 response. Dkt. No. 42. Despite the requirements of the Local Rules, and repeated warnings in notices and orders concerning those requirements, both plaintiffs have refused to comply.

Plaintiffs, and Garraway in his other pending civil actions, have repeatedly violated 10.1(b)(2), and received judicial warnings.

The court's last warning was issued in a January 15, 2003, letter. See Undocketed Jan. 15, 2003, Ltr. of Judi L. McNicholas, Courtroom Deputy.

II. Factual Background

According to plaintiffs' sparse complaint, Paul Morabito, a Binghamton Police Officer, violated their civil rights on November 2, 1999, when he "entered my 258 Main Street Binghamton home and illegally confiscated my puppy Ashley. He failed to follow any legal processes and in doing so violated my right to due process of law. The dog is jointly owned by Anthony Garraway and Kenneth Harvey." See Amend. Compl. at 2-3, Dkt. No. 7.

The uncontradicted facts in Morabito's summary judgment motion provide further detail. On November 2, 1999, the Binghamton Police received an animal cruelty complaint from Christine Hawk who resided in an apartment at 258 Main Street, Binghamton. Statement of Material Facts, ¶ 1, Dkt. No. 19 ("SMF"); Morabito Aff. and Ex. A, Dkt. No. 21 ("Morabito Aff.). Morabito was assigned to respond, did so, and spoke with Hawk who told him that she suspected her neighbor, Kenneth Harvey, was abusing his dog, Ashley, because the dog appeared emaciated. Id. Morabito then went to the Harvey apartment and spoke with the only occupant, Laura Terrio, Harvey's roommate. SMF, ¶¶ 3, 8; Morabito Aff. ¶ 5. Garraway did not reside in the apartment. Terrio told Morabito that Harvey was out of town, and that Harvey's son was supposed to be caring for Ashley. She also told Morabito that Ashley had been defecating blood, that she had communicated that information to Harvey, but Harvey had not taken the dog to a veterinarian. After Terrio permitted consensual entry into the apartment, Morabito observed the dog in plain view. Ashley was very thin, and Morabito saw that there was no food in the apartment. SMF, ¶¶ 4-7, 15; Morabito Aff. ¶¶ 5-7. Ashley was unlicenced. SMF, ¶ 13-14. Morabito contacted his supervisor who instructed him to transport Ashley to the Broome County Dog Shelter. SMF, ¶ 9; Morabito Aff., ¶ 8. The next day, Barbara Ulrich, DVM, examined Ashley, and determined that the dog had numerous hook worms, and abnormally low body weight with prominent ribs and backbone which was likely due to malnutrition. SMF, ¶ 10; Ulrich Aff. and Ex. A., Dkt. No. 20. On November 17, Harvey was charged with failing to provide proper sustenance to Ashley in violation of the New York Agriculture Markets Law, § 353. SMF, ¶ 11 and Ex. B; Morabito Aff., ¶ 9. In the interim, and on November 9, 1999, Harvey obtained the required dog license, and the dog was returned to him. SMF, ¶ 14. The failure to license the dog violated the Binghamton City Code and the Agriculture and Markets Law. See Binghamton City Code, L.L. No. 3-1994 §§ 1, 5 (Dkt. No. 22, Ex. A); N.Y. Agric. Mkts. L., §§ 109(1), 119 (McKinney 1991).

III. Summary Judgment Standard

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994). The moving party has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). "When a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of the . . . pleading, but the adverse party's response, by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56(e)], must set forth specific facts showing that there is a genuine issue for trial." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Rexford Holdings, Inc. v. Biderman, 21 F.3d 522, 525 (2d Cir. 1994) (alteration in original) (citation omitted). However, it is well settled that on a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999).

Furthermore, in pro se cases, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972); see Estelle v. Gamble, 429 U.S. 97, 106 (1976), and should read a pro se party's "supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Indeed, the Second Circuit has stated that "[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Any ambiguities and inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990); see LaFond v. General Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995).

This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment. Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001). More specifically, Local Rule 7.1(a)(3) of this court provides that "any facts set forth in the [moving party's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." The Rule further requires that the "non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise." Northern District courts have strictly applied Local Rule 7.1(a)(3)'s requirements. Giguere v. Racicot, 00-CV-1178, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002) (inter alia citing Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 00-CV-260, 2001 WL 237218, at *1 (N.D.N.Y. Mar. 9, 2001)).

So too, this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute. Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). As long as the local rules impose a requirement that parties provide specific record citations in support of their statement of material facts, the court may grant summary judgment on that basis. Id. at 470-71.

In this case, Harvey and Garraway have failed to provide the court with a separate statement of disputed material facts in compliance with Local Rule 7.1(a)(3), despite repeated orders offering them the opportunity to properly respond and advising them of the adverse consequences if they failed to do so. Consequently, the court will accept the properly supported facts contained in Morabito's 7.1 Statement as true for purposes of this motion. The court turns to the sufficiency of plaintiffs' claim.

IV. Substantive Discussion

A. Summary

Although plaintiffs have cloaked their sparse civil rights claim in "due process" terms, the gravamen of their complaint is that Ashley was "illegally confiscated." Compl. at ¶ 4, Dkt. No. 7. Since seizures are specifically covered by the Fourth Amendment, their claim must be analyzed under that provision, not the Fourteenth Amendment's Due Process Clause. So too, Morabito has asserted the affirmative defense of qualified immunity, and current jurisprudence requires that the court evaluate the underlying constitutional claim before determining the viability of that defense. Additionally, a constitutional analysis of Morabito's conduct is significantly impacted by the extent to which he was authorized to act under New York law. Morabito's motion for summary judgment should be granted because he was specifically authorized by New York to take the actions he did, there was no illegal seizure, plaintiffs received all of the process they were due, and Morabito is entitled to qualified immunity.

B. The New York Statutory Scheme

The court begins with an overview of New York's statutory scheme which authorized Morabito's actions. Cruelty to animals is a crime in New York, penalized by § 353 of the Agriculture and Markets Law, which specifically provides:

A person who . . . deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal . . . to be deprived of necessary food or drink, or who wilfully . . . instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor, punishable by imprisonment for not more than one year . . .

N.Y. Agric. Mkts L., § 353 (McKinney 1991). Additionally, the Agriculture and Markets Law requires a police officer to seize any unlicensed dog even if the dog is on the owner's premises. N.Y. Agric. Mkts. L., § 118(1)(b) (McKinney Supp. 2003). Among other things, the legislative purpose for licensing is the control and protection of the dog population and the protection of citizens and property. N.Y. Agric. Mkts. L., § 106 (McKinney 1991). For instance, rabies vaccination is a precondition of licensing, and obviously serves to protect the public. N.Y. Agric. Mkts. L., § 109(3) (McKinney Supp. 2003).

When an unlicensed dog is seized, officials must properly shelter, feed and water the animal during a "redemption period." N.Y. Agric. Mkts. L., § 118(3) (McKinney Supp. 2003). If the officials know the owner of record, the owner must be notified of the seizure and the redemption procedure. Id. at § 6. Depending on the method of notification, the owner has up to nine days to redeem the dog upon payment of impoundment fees and proof that the dog has been licensed. Id. Furthermore, New York provides absolute immunity to police officers who seize unlicensed dogs. Id. at § 11. The failure to license a dog may be prosecuted as a criminal violation or civil penalty. N.Y. Agric. Mkts. L., § 119(1)(a), (2) (McKinney Supp. 2003).

New York's statutory authorization to conduct searches is found in Article 690 of the Criminal Procedure Law. See N.Y.C.P.L., § 690.05 et. seq. (McKinney 1995 and Supp. 2003). If authorized, the police may seize property that is evidence or otherwise tends to demonstrate that an offense was committed. N.Y.C.P.L. §§ 690(2)(b), 690.10(4). Seized property remains under judicial control, but there are various procedural mechanisms one may use to regain possession. See e.g. N.Y.C.P.L. §§ 450.10, 690.55, 710.70(1). Additionally, an owner may retrieve the property by making a simple demand, instituting an Article 78 proceeding for a writ of mandamus or instituting a replevin action. See McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972); Matter of DeBellis v. Property Clerk of the City of New York, 79 N.Y.2d 49 (1992); Boyle v. Kelly, 42 N.Y.2d 88 (1977).

C. Fourth Amendment Seizure or Fourteenth Amendment Due Process

In Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court observed:

Because we have "always been reluctant to expand the concept of substantive due process," (citation omitted), we held in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), that "[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) . . .

Sacramento v. Lewis at 842 (alteration added). Citing United States v. Lanier, 520 U.S. 259, 272, n. 7 (1997), the Court stated that a due process analysis is inappropriate if a claim is encompassed by the Fourth Amendment, and then added that searches and seizures are specifically covered by the Fourth Amendment. Id. at 843. Since plaintiffs' claim focuses on Ashley's seizure, it is subject to Fourth Amendment analysis. See Van Patten v. City of Binghamton, 137 F. Supp.2d 98, 107 (N.D.N.Y. 2001) (McAvoy, DJ).

D. The Fourth Amendment

42 U.S.C. § 1983 protects citizens from state deprivations of their constitutional rights, including their right to be free from unreasonable seizures as guaranteed by the Fourth and Fourteenth Amendments. Soldal v. Cook County, Illinois, 506 U.S. 56, 60, n. 6 (1992) (citing Monroe v. Pape, 365 U.S. 167 (1961)). A seizure occurs when "there is some meaningful interference with an individual's possessory interests in . . . property." Soldal at 61 (citing United States v. Jacobsen, 466 U.S. 109 (1984)). Constitutionally, and given plaintiffs' uncontested assertion of joint ownership, Ashley was their property. See Altman v. City of High Point, North Carolina, No. 02-1178, 2003 WL 21153303, at *7 (4th Cir., May 20, 2003); Brown v. Mulenberg Township, 269 F.3d 205, 209-10 (3d Cir. 2001); see also, Van Patten v. City of Binghamton, 137 F. Supp.2d at 104.

In the criminal context, warrantless searches and seizures are presumptively improper under the Fourth Amendment although they are subject to established and well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385, 390 (1978) (citing Katz v. United States, 389 U.S. 347 (1967)). Morabito had no warrant authorizing either the search of Harvey's apartment or the seizure of Ashley. However, his conduct leading to Ashley's seizure was eminently reasonable and fully supported by constitutional exceptions to the warrant requirement.

Morabito's presence at the 258 Main Street apartment complex was precipitated by an animal cruelty complaint from Christine Hawk, a Harvey neighbor. She told him that she suspected that Harvey was abusing Ashley because the dog was emaciated. Morabito then went to the Harvey apartment, knocked, and was consensually admitted by Terrio, a joint occupant. His entry was constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Isom, 588 F.2d 858 (2d Cir. 1978). Terrio then told Morabito that Ashley was defecating blood, and that she had informed Harvey of the situation, but that Harvey had not taken the animal to a veterinarian. Morabito observed that the dog was very thin, that there was no food in the apartment, and that the dog was unlicensed, all plain view observations. Horton v. California, 496 U.S. 128 (1990); United States v. Delibac, 925 F.2d 610 (2d Cir. 1991). Based upon his observations, it was eminently reasonable for him to conclude that Harvey had cruelly failed to provide Ashley sustenance or license the dog, both violations of New York's Agriculture and Marketing Law, Sections 353 and 118(1)(b), respectively. See Illinois v. Gates, 462 U.S. 213 (1983) (probable cause determined by the totality of circumstances). Therefore, he was constitutionally authorized to seize Ashley as evidence of a crime, and mandated under New York's substantive law to seize her because she was unlicensed. Warden v. Hayden, 387 U.S. 294 (1967); Andresen v. Maryland, 427 U.S. 463 (1976); N.Y. Agric. Mkts. L., § 118(1)(b) (McKinney Supp. 2003).

The uncontested facts and Fourth Amendment analysis unequivocally demonstrate that Morabito did not illegally seize Ashley. Accordingly, plaintiffs' complaint should be dismissed.

E. Fourteenth Amendment Due Process

Although this case should not be analyzed under due process standards, there were, nonetheless, no Fourteenth Amendment violations of substantive or procedural due process, and the complaint should also be dismissed for those reasons.

According to the Fourteenth Amendment, "[n]o State shall . . . deprive any person of . . . property, without due process of law[.]" U.S. Const., Amend., XIV, § 1. 42 U.S.C. § 1983 implements that right, and a cognizable claim "requires the existence of a federally protectable property right and the denial of such right in the absence of either procedural or substantive due process." Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999). A dog is protected property. Van Patten v. City of Binghamton, 137 F. Supp.2d at 104 (N.D.N.Y. 2001) (citing Mullally v. People, 86 N.Y. 365, 368 (1881)); see also, Brown v. Mullaney, 269 F.3d at 210 (citing Pennsylvania law).

Although often stated in varying terms, a substantive due process violation occurs when a state actor interferes with a property right through "conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority." Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 505 (2d Cir. 2001). The Supreme Court has stated that substantive due process limits arbitrary and oppressive actions by both the legislative and executive branches of government although the relevant criteria differs as to each. Sacramento v. Lewis at 846. Executive abuse involves conduct that shocks the conscience, and is so brutal and offensive that it is antithetical to traditional ideas of fair play and decency. Id. at 846-47. It is clear that the standard far exceeds tort notions of negligence, instead approaching standards of wilfulness or deliberate decisions to harm. Id. at 848-49. The Fourth Circuit has suggested that legislative abuse does not involve the conscience shocking test, instead requiring a different two-step inquiry. Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). The first step is to determine whether a legislative enactment involves a fundamental right or liberty deeply rooted in the Nation's history and tradition. If so, the second step requires that the court determine whether the statute violates that fundamental liberty or is narrowly tailored to serve the state's compelling interest. Id.

Clearly, New York's dog licensing statute which imposes regulations and procedures governing dog ownership does not impede rights deeply rooted in the Nation's history. In fact, the Supreme Court, albeit in a different context, addressed New York's dog licensing scheme in Nicchia v. People of the State of New York, 254 U.S. 228 (1920), holding:

Property in dogs is of an imperfect or qualified nature and they must be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right. (citations omitted). Its power to require those who wish to keep dogs to secure licenses from and pay fees to a public officer is also clear . . . [T]here is no infringement of any right guaranteed to the individual by the federal Constitution. Such action does not amount to a taking of one man's property and giving it to another, nor does it deprive dog owners of liberty without due process of law.

Id. at 230-31. Just as it is evident that the New York's statutes do not violate plaintiffs' substantive due process rights — a claim they have not raised — it is also evident that Morabito's executive actions in enforcing those statutes do not shock the conscience. Accordingly, there was no substantive due process violation.

To assert a procedural due process violation, plaintiffs must establish that they had a property interest in Ashley, a fact already conceded, and that they were deprived of that property without due process. McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir. 2001). Typically, prior notice and a hearing are central components of a procedural due process property deprivation, United States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993) (citing Fuentes v. Shevin, 407 U.S. 67, 80-81(1972)), especially where the deprivation is pursuant to an established regulatory scheme as opposed to the actions of an unregulated individual. Alexander v. Cortes, 140 F.3d 406, 411 (2d Cir. 1998) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)). However, the Supreme Court has observed that exceptions to the predeprivation notice and hearing requirement are tolerated in "'extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.'" James Daniel Good Real Property at 53 (citing Fuentes at 82). Furthermore, the three-part inquiry set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) is useful in making the determination as to whether post-deprivation procedures are adequate. James Daniel Good Real Property at 53.

According to Mathews v. Eldridge, the extent of the process due requires the balancing of three factors: "(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge at 335; see also, McMenemy, 241 F.3d at 288.

In this case, New York's post-deprivation procedures governing Ashley's seizure as either an unlicensed dog or as evidence of a crime are more than adequate to satisfy the Eldridge analysis. See Section IV.B., The New York Statutory Scheme. Pursuant to its police powers to regulate animals for the health and safety of its citizens, New York requires the seizure of an unlicensed dog. However, its post-seizure redemption regulations seek to reunite dog and owner quickly. The private interest is slight since the Supreme Court has already ruled that property interests in dogs is imperfect, qualified and subject to drastic regulations by the state without depriving owners of any federal right. Nicchia, 254 U.S. at 230. This is especially true when the dog will be returned at the end of its ordeal. Cf. Van Patten, 137 F. Supp.2d at 101 (dog euthanized before owner could perfect an authorized appeal). There is immediate notification, and the owner can retrieve the dog as soon as he or she obtains the required license and pays the impoundment fees. The impoundment fees are a direct by-product of New York's humane treatment of the animal by ensuring shelter, food and water, and, of course, the license is contingent on such things as a rabies vaccination which serves to protect the public. Here, Harvey was reunited with Ashley seven days after the seizure. Although it was unnecessary for Harvey and Garraway to employ any of the procedural mechanisms available for retrieval of Ashley as "evidence" of Harvey's criminal charge, those mechanisms were available, and also satisfy the Mathews v. Eldridge three-step inquiry. Lastly, plaintiffs have failed to respond to the motion much less offer the court the benefit of any argument concerning what alternative procedural mechanisms could be employed.

For the reasons stated, there were no substantive or procedural due process violations, and the motion should be granted on these alternative bases.

F. Qualified Immunity

Morabito has asserted qualified immunity, a defense which "strikes a balance between the need to provide a means for the vindication of constitutional guarantees and the societal costs . . . in litigation against public officials." Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002) (citation omitted). Public officials are "shield[ed] from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were 'clearly established' at the time." Id. at 1281(citation omitted). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation, . . . rather than a mere defense to liability." Id. at 1281 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Supreme Court has held that "[w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Id. at 1281(quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)) (alteration in original).

The Supreme Court has established a two-part inquiry for determining whether an official is entitled to qualified immunity. The first question is whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Id. at 1281 (quoting Saucier, 533 U.S. at 201) (alteration in original). The answer to this question serves as "a clear standard against which officers can measure the legality of future conduct." Id. at 1281 (citation omitted). Thus, if an officer's conduct did not violate a constitutional right, it is not necessary to proceed further, and the court should find that the officer is entitled to qualified immunity.

However, if the officer's conduct violates a constitutional right, the second question is "'whether the right was clearly established' at the time it was allegedly infringed." Id. at 1281(citing Saucier, 533 U.S. at 201). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 1281 (citing Saucier, 533 U.S. at 202). Simply put, if an officer's conduct violated a right, the court must analyze the objective reasonableness of the officer's belief in the lawfulness of his actions. An officer is entitled to qualified immunity if he reasonably believed that his actions did not violate the plaintiffs' rights, even if that belief was mistaken. However, if an officer's belief was not objectively reasonable, the plaintiffs' claims must proceed.

Here, the court need not analyze the second prong because it has already determined that Morabito did not violate plaintiffs' constitutional rights. Ashley's seizure was legal both because she was unlicensed and because she was evidence of a crime. Furthermore, there was no substantive due process violation, and New York's post-deprivation licensing and criminal laws provide for all of the procedural process that was due. Lastly, Morabito followed those procedures. Accordingly, the court recommends dismissal because Morabito is entitled to qualified immunity.

Although unnecessary because it relates to the second prong of the qualified immunity inquiry, Morabito's reasonableness is further bolstered by the fact that he relied on instructions from his superiors and he was absolutely immune from suit under New York law. See N.Y. Agri. Mkts. L., § 11 (McKinney Supp. 2003).

V. Conclusion

Based upon the foregoing, the court recommends that the District Court grant Morabito's motion for summary judgment on any or all of the alternative bases recited.

WHEREFORE, it is hereby RECOMMENDED that the District Court GRANT defendant's motion for summary judgment (Dkt. No. 18) for the following, alternative reasons:

1. The defendant is entitled to qualified immunity on all constitutional claims;

2. Plaintiffs' complaint asserts a Fourth Amendment claim for the unlawful seizure of their dog, and there was no unlawful Fourth Amendment seizure;

3. Plaintiffs' complaint asserts an arguable Fourteenth Amendment substantive due process claim for the unlawful seizure of their dog, and there was no violation of their Fourteenth Amendment substantive due process rights; and,

4. Plaintiffs' complaint asserts an arguable Fourteenth Amendment procedural due process claim for the unlawful seizure of their dog, and there was no violation of their Fourteenth Amendment procedural due process rights; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report and Recommendation upon the parties by regular mail.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


Summaries of

Harvey v. Morabito

United States District Court, N.D. New York
Jun 17, 2003
Civil No. 9:99-CV-1913 (HGM/GLS) (N.D.N.Y. Jun. 17, 2003)

noting that the owner of a dog seized by police failed to state a claim for a due process violation because the owner had "various procedural mechanisms" available to him, including "making a simple demand"

Summary of this case from Grant v. Am. Soc'y for the Prevention of Cruelty to Animals
Case details for

Harvey v. Morabito

Case Details

Full title:KENNETH D. HARVEY; and ANTHONY M. GARRAWAY, Plaintiffs, v. PAUL MORABITO…

Court:United States District Court, N.D. New York

Date published: Jun 17, 2003

Citations

Civil No. 9:99-CV-1913 (HGM/GLS) (N.D.N.Y. Jun. 17, 2003)

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