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 ...