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Lunon v. Botsford

United States Court of Appeals, Eighth Circuit

December 27, 2019

Darryl Lunon Plaintiff- Appellee
v.
Kathy Botsford, in her individual and official capacities as Director of Pulaski County Sanitation and Animal Services, et al. Defendants - Appellants

          Submitted: September 24, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         Abandoning state law damage claims barred by statutory immunity, Darryl Lunon filed an amended complaint seeking damages under 42 U.S.C. § 1983. The individual defendants, sued in their individual and official capacities, are Animal Control Officer Jonathan Dupree of the Pulaski County Sanitation and Animal Services ("PCAS"), PCAS Director Kathy Botsford, and City of North Little Rock Animal Control Director David Miles. Also named as defendants are Pulaski County, PCAS, the City of North Little Rock, and North Little Rock Animal Control.

         Lunon alleges that each individual defendant violated his constitutional right to procedural due process when the North Little Rock Animal Shelter, after a five-day holding period, put a stray dog up for adoption and spayed the dog before delivering it to the adopting family. Unknown to defendants, the stray dog was Lunon's young German Shepherd, Bibi Von Sonnenberg ("Bibi"), which boasts world champion lineage and had escaped from Lunon's back yard two weeks earlier. Lunon argues he had a procedural due process right to notice and an opportunity to be heard before Bibi was put up for adoption and her substantial value as a breeding dog destroyed by spaying. He further alleges that Pulaski County and North Little Rock are liable for failing to train their employees to comply with procedures that required animal control officers to scan Bibi for an embedded microchip that would have disclosed Lunon as her owner.

         Defendants removed the case to federal court and moved for summary judgment, which the district court denied. The individual defendants "in their individual capacities" then filed this interlocutory appeal, arguing the district court erred in denying their motion for summary judgment because they are entitled to qualified immunity. Reviewing the denial of qualified immunity de novo, we agree and therefore reverse. Sutton v. Bailey, 702 F.3d 444, 446 (8th Cir. 2012) (standard of review).

         I. Background

         After Bibi escaped from Lunon's yard on February 14, 2017, Will Quinn discovered a dog he did not recognize in his nearby garage and called the Pulaski County Sheriff's Office, which dispatched a deputy sheriff and contacted PCAS. PCAS dispatched Dupree, the only animal control officer on duty that day because a colleague had called in sick. A Pulaski County ordinance authorizes animal control officers, "on complaint by a resident," to pick up and impound in an animal shelter a "stray" domestic animal that is off the owner's premises and running at large. Stray is defined as lacking a collar with the owner's name, address, and phone number. At Quinn's garage, Bibi did not resist Dupree, who saw that she had a collar but no metal tag identifying her owner.[1] With the dog's owner unknown, Dupree took Bibi to the North Little Rock Animal Shelter. The Shelter is an agency of the City, not Pulaski County, but has a contract to accept stray dogs from Pulaski County animal control officers for impoundment.

         Lunon's procedural due process claim is based in large part on Dupree's failure to comply with Section III of PCAS Procedure P14-06, which provides:

It shall be the responsibility of the Animal Service Officer who brings an animal into the North Little Rock Animal Shelter to make a kennel card for the animal. It shall also be the responsibility of this person to scan the animal for an implanted microchip and note it on the kennel card. All animals should be scanned [unless dangerous]. The Microchip Scanner is located above the work table in the kennel and must be returned there after each use!

         When Dupree delivered Bibi to the Animal Shelter, he did not scan her for a microchip. A scan would have revealed a permanent identifying number that could have been searched through the American Kennel Club to identify Lunon as her owner. Dupree completed the required kennel card, but he left blank the space for microchip scanning and incorrectly listed Bibi as a male dog.

         Animal Shelter staff impounded Bibi without scanning her for a microchip. The Shelter impounded Bibi for five days, consistent with Section 3.1.7(B) of the North Little Rock Municipal Code:

If the owner of an impounded dog fails or refuses to reclaim such dog within five days after impoundment, the city animal shelter is hereby authorized to release such dog to a person other than the owner upon the payment ...

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